UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


The 

Law    and   Customs 

of 

Riot   Duty 


A  Guide  For  National  Guard  Officers 
and  Civil  Authorities 

With 

Commentaries  on  Federal  Aid 


By 

BYRON  L.   BARGAR 

Of  the  Columbus,  Ohio,  Bar 

Lt.  Col.  Ohio  National  Guard,   Retired 


Columbus,   Ohio 

Published  By  The  Author 

1907 


T 


^n  01 


T 


COPYRIGHTED     1907 

BY 

BYRON     L.     BARGAR 


3  34  o^  % 


Cham^lin     Printing    Co. 
CouuMEus.     Ohio 


^ 


V 

■H 


<^ 


To 

two  officers  of  the  civil  war, 
the  grandfathers  of  my  children^ 
this  volume  is 
affectionately  inscribed. 


PREFACE. 


The  term  riot  duty,  used  generically,  does  not  spe- 
cifically include  all  forms  of  domestic  disturbance  and 
rebellion  in  which  the  aid  of  troops  may  be  required ; 
but  this  term  is  chosen  as  a  title  for  bibliological  rea- 
sons, although  the  scope  of  the  following  pages  might 
permit  of  a  more  comprehensive  title. 

It  is  probably  true  that  riot  service  is  the  most 
distasteful  duty  which  soldiers  are  called  upon  to  per- 
form. Furthermore  it  is  unfortunate  that  the  first 
military  force  called  on  for  this  duty  is  composed  of 
what  may  be  termed  amateur  soldiers.  They  have 
neither  the  sang-froid  of  the  regular,  which  comes 
from  familiarity  with  service,  nor  the  independence  of 
action,  which  comes  from  the  fact  that  regulars  do 
not  take  orders  from  civil  officers.  These  cumulative 
disabilities  have  given  citizens  a  dread  of  riot  duty ; 
and  this  fact  is  responsible  for  a  part  of  the  difficulty 
found  in  keeping  the  ranks  of  the  national  guard  filled 
with  good  men. 

The  militiamen  feel  the  responsibility  of  their  po- 
sition as  a  reserve  power  of  the  state.  But  they  are 
not  always  taught  how  to  discharge  this  responsibility. 
They  acquire  a  distaste  for  riot  duty  because  they  be- 
come confused  as  to  the  legal  requirements  of  that 
duty.  They  have  not  the  slightest  fear  of  a  mob. 
They  dread  the  law.    They  fear  the  law  because  they 


are  uncertain  of  its  protection ;  because  to  them  it  is 
vague,  illy  defined  and,  gathered  hastily  from  many 
sources,  is  inconsistent  and  contradictory. 

An  attempt  is  made  in  the  following  pages  to 
give  to  the  guardsmen  and  civil  authorities  a  conven- 
ient guide  to  the  rules  of  law  which  govern  riot  duty. 
Recommendations  are  freely  made  as  to  administra- 
tive details  necessary  to  keep  organized  militia  in  a 
proper  state  of  preparedness ;  as  to  forms  of  orders, 
proclamations  and  reports ;  with  suggestions  as  to  tac- 
tical employment  of  troops. 

The  various  details  of  riot  duty  are  treated,  where 
possible,  in  the  order  in  which  the  work  is  performed, 
and  the  legal  phase  of  each  situation  is  stated  in  con- 
nection therewith,  so  that  the  student  can  readily  de- 
termine his  status  at  each  stage  of  the  service.  Mili- 
tary terms  are  used  where  the  context  admits. 

The  principal  danger  in  the  application  of  legal 
rules  to  the  duties  required  in  riot  and  insurrection  is 
that  tiiese  rules  may  be  applied,  either  by  a  civil  or 
military  officer,  to  the  wrong  conditions.  Illustrations 
of  this  are  occasionally  furnished  in  the  text.  Bear- 
ing this  in  mind,  and  in  order  that  rules  could  be  con- 
cisely stated,  this  work  is  so  arranged  that  each  legal 
rule  applies  to  the  situation  indicated  by  the  chapter 
and  section  titles.  In  reading  any  rule,  a  glance  at 
the  chapter  and  section  headings  enal)les  the  reader 
to  grasp  an  outline  of  the  situation  under  which  the 
rule  applies. 

Columbus,  Ohio,  May  1,  1907. 


TABLE  OF  CONTENTS 


CHAPTER  ONE. 

DEFINITIONS.       SCOPE    AND    SOURCES    OF    MILITARY    LAW. 


Sec.     1.  Army  and  Militia — Legal  Difference. 

2.  National  Guard  is  Militia. 

3.  Military    Law.      Martial     Law.      Military 

Government. 

-1.  Regulations. 

"       5.  Discipline. 

6.  Dual  Powers  of  Commander. 

"       7.  Scope  of  Commander's  Powers. 

"       8.  Control     of     Civilians     Who     Accompany 

Troops. 

"       0.  Primary  Source  of  Military  Law. 

•'     10.  Other  Sources  of  Military  Law. 

'■     IL  C  S.  Orders  and  Regulations. 

"     12.  Customs  of  the  Service. 

"     13.  Judicial  Decisions. 


CHAPTER  TWO. 

PREPAREDNESS. 


Sec.    It.     Importance  of  Preparation. 
"     15.     System. 
"     16.     Notifying  Men. 

7 


"     17. 

Form  of  Notice. 

"     18. 

General  Notices. 

•'     19. 

Prepared  Proclamations. 

"     20. 

Ammunition. 

"     21. 

Equipment. 

"     22. 

Baggage  and  Stores. 

"     23. 

Drills. 

"     24. 

Instruction  in  Riot  Dut) 

CHAPTER  THREE. 

WHEN   TROOPS   SHOULD   BE    CALLED. 


Sec.    25.  Constitutions  and  Statutes  Ordinarily  Gov- 
ern. 

2t*'.  Enforcement  of  Unconstitutional  Laws. 

27.  Constitutionality     of     Statutes     Governing 
Calls. 

28.  The  State  Constitution. 

29.  When  Chief  Executive  is  Supreme. 

30.  Civil   Ofificials    Have  Authority   to   Decide. 

31.  Interpretation  of  Laws. 

32.  Rebellion  and  Insurrection. 

33.  Riot  Defined.     Mob. 

34.  Rebellious  Mob. 

35.  Occasions  Classified. 
3().  An  Instance  of  the  First  Class. 

37.  An  Instance  of  the  Second  Class. 

38.  An  Instance  of  the  Third  Class. 

39.  An  Instance  of  the  Fourth  Class. 

40.  Importance  of  Prompt  Decision. 

8 


41.  Use  of  Federal  Militia. 

42.  Federal  Aid. 

43.  Application  for  Federal  Aid. 


CHAPTER  FOUR. 

ASSEMBLY    BEFORE    RECEIPT    OF    ORDERS. 


Sec.    44.  Advisability. 

45.  Regulations. 

46.  Where  no  Regulations  Exist. 

47.  Care  of  Public  Property. 

48.  Cautionary   Orders. 

49.  Conduct  of  Officers, 

50.  Conduct  of  Men. 

51.  Subsisting  Men  Before  Orders  Received. 


CHAPTER  FIVE. 

WHO  MAY  CALL  OUT  TROOPS. 


Sec.    52.  State  Constitutions  and  Statutes. 

53.  The  President  of  the  United  States. 

54,  The  Governor, 

55.  Other  Civil  Authorities. 

56.  Jurisdiction  of  Minor  Civil  Authorities. 

57,  Appeal  to  Governor, 

58,  Conflicting  Orders   for   Service. 


CHAPTER  SIX. 

ORDERS   AND  REPORTS. 


Sec.    50.  Written  Orders. 

"     GO.  An  Order  for  Troops. 

61.  Form  of  Order  for  Troops. 

62.  Acknowledging  Receipt  of  Orders. 

63.  The    First    Orders    of    the    Commanding 
Officer. 

64.  Communication  With  the  Governor. 

65.  Subsequent  Orders  from  Civil  Authorities. 
GG.  Orders  and  Reports  in  General. 

67.  Conflicting  Orders. 

68.  Protection  Afforded  by  Orders. 

69.  Interpretation  of  Orders. 

70.  Minors. 


CHAPTER  SEVEN. 

CONDUCT  OF  OFFICERS. 


Sec.    71.  In   Preparation. 

72.  The  Decision  of  Legal  Questions. 

73.  Liability  of  Municipality. 
rk  Conduct  Toward  Civil  Officers. 

75.  Conduct  Toward  Troops. 

76.  Conduct  Toward  Citizens. 

77.  Conduct  Toward  the  Mob. 

78.  Qualified  Martial  Law. 

79.  Personal  Conduct. 

10 


CHAPTER  EIGHT. 

MOVEMENT  OF  TROOPS. 


c.    80. 

Scouts, 

"     81. 

Civil  Authorities  Should  Meet  Troops 

"     82. 

Detraining. 

"     83. 

Discipline  Enroute. 

"     84. 

Marches. 

"     85. 

Transportation. 

"     86. 

Separate  Units. 

"■     87. 

Travel  Rations. 

"     88. 

Baggage. 

"     89. 

U.  S.  Service. 

CHAPTER  NINE. 

AID  OF  CIVIL  AUTHORITIES. 


Sec.    90.  Liability  to  Arrest  While  Performing  Mili- 
tary Service. 

91.  Exception  to  Foregoing  Rule. 

92.  Another  Exception. 

93.  When   Accountability   to    Civil    Authorities 
Begins. 

94.  Authority  of  Military  Officers. 

95.  Act  Under  Order  of  Civil  Authority. 
9G.  Self  Defense. 

97.  Ministerial  Duties. 

98.  Felonies  and  Misdemeanors. 

99.  Peace-Officers. 
100.  Arrest  for  Felony  or  Attempted  Felony. 

11 


(( 

101. 

(< 

102. 

u 

103. 

a 

104. 

<< 

105. 

(< 

106. 

a 

107. 

a 

108. 

II 

109. 

<< 

110. 

<< 

111. 

li 

112. 

<( 

113. 

<< 

114. 

<< 

115. 

ii 

116. 

(i 

117. 

Force  Properly  Used  Therefor. 

Arrest  After  Escape. 

Arrest  for  Misdemeanor. 

Force  Properly  Used  Therefor. 

Civil  Officers  Should  Confer  Full  Powers. 

Prevention  of  Crime. 

Affrays. 

A  Breach  of  the  Peace. 

What  Constitutes  Presence  or  View. 

Military  Officers  Discretionary  Powers. 

Resisting  Attacks  of  Mob. 

Firing  on  Mob. 

Justifiable  Homicide  by  Citizens. 

Homicide  When  Rioters  Resist  Arrest. 

Protecting  Prisoner. 

State  Statutes  Control  Riot  Duty. 

Territorial  Limits. 


CPIAPTER  TEN. 

CO-OPERATION    WITH    CIVIL    AUTIIORITIF.S. 


Sec.  118.  Disputes  Between  Civil  Officers. 

"  119.  Qualified  Martial  Law. 

"  120.  Degree  of  Co-operation. 

"  121.  Prisoners. 

"  122.  Where  a  Governor  Acts  Independently  of 

Civil  Authorities. 

"  123.  Separating  Rioters  from  Citizens. 

"  124.  Concurrent  Alartial  and  Civil  Law. 

12 


"  125.     Habeas  Corpus. 

126.     Rival  Civil  Authorities. 


<( 


CHAPTER  ELEVEN. 

OUSTING  AND  REPLACING  CIVIL  AUTHORITIES. 


Sec.  127.  Governor  Decides  When  Civil  Authorities 
Should  be  Replaced. 

"  128.     Governor  May  Act  Summarily. 

"  129.  Delegation  of  Powers  to  Military  Com- 
manders. 

"  130.     Proclaiming  Martial  Law. 

"  131.  Establishing  Martial  Law  Without  Procla- 
mation. 

"  132.     Ouster  by  Arrest. 

"  133.     Ouster  by  Independent  Action. 

"  134.     Disarming  Authorities. 

"  135.     Reinstating  Civil  Authorities. 

"  136.     Establishment  of  Military  Commissions. 

"  137.     Jurisdiction  of  Military  Commissions. 

"  138.     Invoking  Federal  Aid. 

"  139.     Control  of  Federal  Troops. 


CHAPTER  TWELVE. 

PROCLAMATIONS. 


(< 


Sec.  140.     Statutory  Requirements. 

141.     Form  of  Federal  Proclamation. 

13 


'  142.  Form  of  a  State  Proclamation. 

'  143.  Recitals  in  Proclamations. 

'  144.  Military  District  Proclamation. 

'  145.  Sheriff's  Proclamation. 

'  146,  Special  Proclamations. 

'  147.  Forfeiture  of  Estate. 

'  148.  Final    Proclamation. 


CHAPTER  THIRTEEN. 

CLOSING  SALOONS.      ORDER   AT   NIGHT. 


Sec.  149.  Statutes  Relative  to  Closing  Saloons. 

"  150.  Where  no  Statutes  Exist. 

"  151.  Military  Commander's  Duties. 

"  152.  Under  Martial  Law. 

"  153.  Public  Meetings  at  Night. 

"  154.  Theaters  and  Places  of  Amusement. 

"  155.  Ministers. 

"  156.  Curfew. 

"  157.  Maintaining  Order  at  Night. 


CHAPTER  FOURTEEN. 

FIRST  DISPOSITION  OF  TROOPS. 


Sec.  158.  Marching  Through  City  Streets. 

"  159.  Marching  on  Mob. 

"  160,  Preventing  a  Lynching. 

"  161.  Preventing  Destruction  of  Public  Property 

14 


"  162. 

Safeguards. 

"  163. 

Barricades. 

"  164. 

Machine  Guns. 

"  165. 

Cavalry. 

"  166. 

Artillery. 

"  167. 

Medical  Department. 

"  168. 

General  Suggestions. 

CHAPTER  FIFTEEN. 

SUBSISTING,   QUARTERING   AND   PAYING  TROOPS. 


Sec.  169.  Subsisting  Troops  in  Federal  Service. 

170.  Federal  Service — Emergency  Subsistence. 

171.  State  Statutes  and  Regulations. 

172.  Emergency  Subsistence  Without  Orders. 

173.  Billeting  Troops. 

174.  Canvas. 

175.  Quartermaster's  Duties. 

176.  Officer's  Servants. 

177.  Paying  Troops. 


CHAPTER  SIXTEEN. 

TACTICAL  USE  OF  TROOPS. 


<( 


<( 


Sec.  178.  In  Federal  Service. 

179.  Federal  Statutes. 

180.  State  Statutes. 
"  181.  Tactics — Definition  of. 

15 


182.  State  Regulations. 

183.  Tactics  in  Aid  of  Civil  Authorities. 

184.  Tactics  Under  Qualified  Martial  Law. 

185.  Tactics  Under  Co-operative  Martial  Law. 

186.  Tactics  Under  Absolute  Martial  Law. 

187.  Use  of  Bayonet. 

188.  Use  of  Blank  Cartridges. 

189.  Safeguards  and  Outposts. 

190.  Guarding  Large  Areas. 


CHAPTER  SEVENTEEN. 

MARTIAL   LAW. 


i( 


<< 


Sec.  191.  Definition. 

"  192.  Absolute  Martial  Law. 

"  193.  Co-operative  Martial  Law. 

"  194.  Qualified  Martial  Law. 

"  195.  Civil  Law. 

"  196.  Insurrection  and  Rebellion. 

197.  Status  of  Insurgents. 

198.  Elasticity  of  Martial  Law. 
"  199.  Necessity  for  Martial  Law. 
"  200.  State  Powers. 
"  201.  President's  Powers. 
"  202.  Territorial  Governors'  Powers. 
"  203.  Exercise  of  Absolute  Martial  Law. 

204.  Principal  Rules. 

205.  Right  of  Search. 
"  206.  Jurisdiction  of  Civil  Courts. 
"  207.  Administration  of  Martial  Law. 

16 


ti 


(( 


208.  Punishments. 

209.  Exercise  of  Co-operative  Martial  Law. 

210.  Exercise  of  Qualified  Martial  Law. 

211.  Establishing  Qualified  Martial  Law. 

212.  Preventing  Molation  of  Statute. 

213.  Safe-conducts. 

214.  Provost  Courts. 

215.  Provost  Marshals. 

216.  Provost  Officers. 


CHAPTER  EIGHTEEN. 

HABEAS    CORPUS. 


Sec.  217.     Federal  Constitutional   Provisions. 

"  218.     Habeas  Corpus   Defined. 

"  219.     Suspension  of  Writ  Defined. 

"  220.     In  Aid  of  Civil  Authorities. 

"  221.     Under  Qualified  Martial  Law. 

"  222.  Under  Co-operative  Martial  Law  in  State 
Service. 

'*  223.     Form  of  Return  on  Writ. 

'■  224.  Illustration  Under  Co-operative  Martial 
Law. 

"  225.  Under  Co-operative  Martial  Law  in  Fed- 
eral Service. 

"  226.     Under    Absolute    Martial    Law    in    State 

Service. 

"  227.  Under  Absolute  Martial  Law  in  Federal 
Service. 

"  228.     State  Court  Writ  Suspended,  in  Peace,  in 

Federal  Service. 

17 


CHAPTER  NINETEEN. 

TAKING   PRIVATE  PROPERTY. 


Sec.  221>.  In  Aid  of  Civil  Authorities. 

"  230.  Under  Qualified  Martial  Law. 

231.  Under  Co-operative  Martial  Law. 

232.  Under  Absolute  Martial  Law. 

233.  Military  Control  Over  Public  Property. 

234.  Private  Property  of  Prisoners. 
23.5.  Destruction  of  Crops. 
236.  Ground  for  Encampments. 
23T.  Provisions. 

238.  Compensation. 

239.  Private  Property  of  Officers  and  Enlisted 
Men. 


CHAPTER  TWENTY. 

LIABILITY    OF    OFFICERS    UNDER    CIVIL    LAW. 

Sec.  240.     Protection  Afforded  by  Governor's  Orders. 

"  241.     Necessity  for  Proof. 

"  242.     In  Aid  of  Civil  Authorities. 

"  243.     State  Riot  Statutes.     Oppressive  Acts. 

"  244.     Under   Qualified   Martial   Law. 

"  245.     Protection  Afforded  by  President's  Orders. 

"  246.  Officers  Discretionary  Powers,  Federal 
Service. 

"  247.  Under  Co-operative  Martial  Law  in  Fed- 
eral Service. 

18 


<( 


248.  Under  Co-operative  Martial  Law  in  State 

Service. 

249.  Under  Absolute  Martial  Law. 

250.  For  Unnecessary  A'iolation  of  Statute. 

251.  For  Necessaries  for  Troops. 

252.  For  Property  Strategically  Destroyed. 

253.  For  Trespass  by  Subordinate. 

254.  In  Pari  Delicto. 

255.  For   Frauds   in   Service, 

256.  In  Suit  by  Soldier. 


CHAPTER  TWENTY-ONE. 

LIABILITY   OF   ENLISTED   MEN   UNDER   CIVIL   LAW, 


Sec.  257.  When  Liability  Begins. 

"  258.  General  Rule. 

"  251).  Sentries,  General  Rule  Under  Military  Law. 

2r,0.  Sentries,  General  Rule  in  Aid  of  Civil  Au- 
thorities. 

261.  Sentries,  General  Rule  Under  Martial  Law. 

262.  Habeas  Corpus. 

263.  Twice  in  Jeopardv. 


CHAPTER  TWEXTY-TWO. 

MILITIA    IN    U.    S.    SERVICE. 


Sec.  264.     Laws  and  Regulations  Governing. 

265.  Statutory  Authority  For. 

266.  How  Selected, 


19 


"  267.  Pav  and  Pensions  in  Federal  Service. 

"  268.  Company   Minimum  Accepted. 

"  269.  Officers. 

"  270.  State  Property. 

"  271.  Horses. 


Sec. 

2:2. 

273. 

274. 

275. 

276. 

277. 

278. 

279. 

280. 

281. 

CHAPTER  TWENTY-THREE. 

REPORT   OF  TOUR   OF   DUTY. 


Reports  Are  Historical  Details. 
General  Requirements. 
Staff  Reports. 
Medical  Officers  Report. 
Commissary  Officers   Report. 
Quartermaster's  Report. 
Summary  Court  Officer's  Report. 
Judge  Advocate's  Report. 
Under  Martial  Law. 
Fairness. 


20 


CHAPTER  ONE. 


DEFINITIONS.     SCOPE  AND  SOURCES  OF 
MILITARY  LAW. 


1.  Army  and  ]\Iilitia — Legal  Difference. 
The  Constitution  of  the  United  States  makes  a  broad 
distinction  between  the  mihtia  and  the  armies  re- 
ferred to  in  it :  the  powers  conferred  upon  Congress, 
and  denied  to  the  States,  in  reference  to  the  one, 
being  widely  different  from  the  powers  conferred 
and  denied  in  reference  to  the  other.  And,  indeed, 
the  two  words  could  not  properly  have  been  used 
to  convey  the  same  idea.  An  army  is  a  body  of  men 
whose  business  is  war;  the  militia,  a  body  of  men 
composed  of  citizens  occupied  ordinarily  in  the  pur- 
suits of  civil  life,  but  organized  for  discipline  and 
drill,  and  called  into  the  field  for  temporary  military 
service  when  the  exigencies  of  the  countrv  require 
it.   (1) 

2.  National  Guard  is  Militia.  The  terms 
national  guard  and  militia,  with  reference  to  their 
ofificial  acts,  may  be  treated  as  synonymous.  The 
organized  militia  is  commonly  termed  the  national 


(1)     Burroughs  v.   Peyton,   16  Gratt.    (Va.)   475; 
Pars.  1744,  2450  Dig.  Opin.  J.  A.  G.,  Edn.  1901. 

21 


SCOPE    OF    MILITARY    LAW. 

guard,  but  perhaps  all  federal  and  state  statutes 
provide  for  the  use  of  the  unorganized  militia  in 
emergencies.  When  it  is  so  used  it  must  be  first 
organized,  and  it  can  then  be  properly  termed  a  part 
of  the  national  guard.  (2) 

3.  Military  Law.  Martial  Law.  Military 
Government.  In  the  mind  of  the  guardsmen  three 
terms  are  often  confused,  namely :  military  law, 
martial  law  and  military  government.  It  is  there- 
fore well,  at  the  outset,  to  point  out  the  fact  that 
these  three  terms  have  separate  and  distinct  mean- 
ings. The  briefest  way  to  do  this  is  to  define  each 
and  show  its  relation  to  the  others.  Military 
law  is  the  law  that  governs  the  soldier,  at  peace  and 
in  war,  at  home  and  abroad.  Martial  law  is  the  law 
enforced  by  a  military  commander,  over  the  civilians 
in  his  district,  whenever  the  civil  authorities  are 
unable  to  maintain  peace  and  order  or  enforce  the 
laws.  This  district,  however,  must  be  a  part  of  the 
same  country  to  which  the  military  commander  owes 
allegiance.  If  the  same  military  commander  pene- 
trates a  foreign  country,  in  time  of  war.  and  as- 
sumes jurisdiction  over  civil  affairs,  his  control  is 
then  called  military  government,  instead  of  martial 
law.  In  other  words,  martial  law  is  exercised  over 
territory  of  the  state  enforcing  il;   while  military 


(2)     See  Act  of  January  2L  1903,  32  U.  S.  Stat. 
775;  Pars.  1729-1731  Dig.  Opin.  J.  A.  G.,  Edn.  1901. 

22 


SCOPE    OF    MILITARY    LAW. 

government  is  exercised  only  over  enemy  territory. 
An  officer  exercising  military  government  is  re- 
sponsible only  for  breach  of  the  laws  and  customs 
of  war;  but  an  officer  enforcing  martial  law^  is  lia- 
ble for  illegal  acts,  not  only  to  his  military  superiors. 
l)ut  to  persons  who  may  seek  redress  by  civil  action 
as  soon  as  the  courts  are  again  in  working  order, 
and  to  criminal  actions  instituted  by  civil  officers 
under  the  general  laws  of  his  state.     (3) 

-1.  Regulations.  While  all  law  is  regulation 
in  a  greater  or  less  degree,  regulations  proper, 
whether  army  regulations  or  other,  are  administra- 
tive rules  or  directions  as  contrasted  with  statutes. 

(4) 

5.  Discipline.  Disciplinary  punishments  are 
those  imposed  at  the  will  of  military  commanders 
without  the  intervention  of  courts-martial.  (5)  A 
recent  military  work  defines  discipline  as:  "That 
element  in  an  army  which  insures  prompt  obedience 
to  orders,  regulations  and  the  will  of  the  com- 
mander." (6)  Discipline  therefore  means  con- 
trolled behavior. 


(3)  Birkhimer,  ]\Iil.  Gov.  and  ]\Iar.   Law  pp.  21, 
22  ;  Cooley's  Constitutional  Limitations,  p.  379  et  seq. 

(4)  Winthrop's  Mil.  Law  and  Free,  Edn.  1896. 
p.  17. 

(5)  Winthrop's  Mil.  Law  and  Free,  Edn.  189G. 
p.    G78. 

(6)  Mil.  and  Naval  Dictionary,  Wisser  and  Gauss. 

23 


SCOPE    OF    MILITARY    LAW. 

6.  Dual  Powers  of  Commander.  A  com- 
mander of  troops  on  service  will  often  be  compelled 
to  act  in  two  distinct  capacities,  (a)  He  must 
govern  his  troops  by  the  rules  of  military  law.  (b) 
He  may  be  compelled  to  act  as  governor  of  the  dis- 
trict he  occupies  and  must  then  impose  such  laws 
or  rules  on  the  inhabitants  as,  in  his  opinion,  are 
necessary  to  secure  the  safety  of  his  army,  and  also 
the  good  government  of  the  district  which,  by 
reason  of  the  war,  riot  or  rebellion,  may  for  the 
time  have  been  deprived  of  its  ordinary  rulers  and 
the  machinery  for  maintaining  order.  This  latter 
control  is  called  martial  law ;  unless  the  troops  are 
in  a  foreign  country,  where  it  becomes  military  gov- 
ernment. 

7.  Scope  of  Commanders'  Powers.  The  or- 
ders issued  by  a  commander  of  militia  should  at  all 
times  conform  to  law.  He  has  no  greater  right  to 
issue  an  unlawful  order  to  a  militiaman  than  to  any 
other  citizen.     (7) 

8.  Control  of  Civilians  Who  Accompany 
Troops.  Certain  civilians  who  accompany  a  force 
in  the  field,  in  time  of  war,  are  also  subject  to  mili- 
tary law,  such  as  civilians  serving  with  the  force  in 
an  official  capacity ;  persons  accompanying  the 
troops  with  special  leave,  such  as  newspaper  corres- 
pondents and   contractors ;  persons  employed   with 


(?)     Cooke  V.  Cole,  Rap.  Jud.  Que.  22  C.  S.  25. 

24 


SCOPE    OF    MILITARY    LAW. 

the  troops,  such  as  teamsters  and  packers ;  other 
persons  known  as  followers,  who  accompany  the 
troops  either  as  sutlers  or  on  business  or  pleasure 
with  the  permission  of  the  commander.     (8) 

9.  Primary  Source  of  Military  Law.  The 
states,  composing  the  United  States  of  America,  in 
ratifying  the  U.  S.  Constitution,  thereby  delegated 
to  the  federal  government  the  power : 

"To  provide  for  organizing,  arming 
and  disciplining  the  militia,  and  for  gov- 
erning such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States, 
reserving  to  the  States,  respectively,  the 
appointment  of  the  officers,  and  the  author- 
ity of  training  the  militia  according  to  the 


(8)  63  Art.  of  War.  The  accepted  interpretation 
of  this  article  is  that  it  subjects  (in  time  of  war)  the 
classes  of  persons  specified  not  only  to  military  disci- 
pline and  government  in  general,  but  also  to  the  juris- 
diction of  courts-martial  (upon  the  theory,  probably, 
that  they  are  thus  made,  for  the  time  being,  a  part  of 
the  army).  Individuals,  however,  of  the  class  termed 
"retainers  to  the  camp,"  or  officers'  servants  and  the 
like,  as  well  as  camp  followers  generally,  have  rarely 
been  subjected  to  trial  in  our  service.  For  breaches  of 
discipline  committed  by  them  the  punishment  has  gen- 
erally been  expulsion  from  the  limits  of  the  camp  and 
dismissal  from  employment.  Dig.  Opin.  J.  A.  G.. 
par.  161.  The  jurisdiction  authorized  by  this  article 
cannot  be  extended  to  civilians  employed  in  connec- 
tion with  the  army  in  time  of  peace.     Ibid.,  par.  165. 

25 


SCOPE    OF    MILITARY    LAW. 

discipline  prescribed  by  Congress."  (9) 
For  military  law  governing  the  militia  the  stu- 
dent should  first  look  to  the  federal  constitution 
and  the  laws  of  Congress.  Here  difficulty  is  en- 
countered, because  many  acts  of  Congress,  intended 
for  the  "armies"  of  the  United  States,  have  been 
tacitly  adopted  by  some  states  as  the  "discipline  pre- 
scribed by  Congress"  for  the  militia.  Many  of 
these  same  acts  of  Congress,  notably  the  Articles 
of  War,  are  deficient  in  direct  application  to  mili- 
tia in  state  service,  and  it  is  questionable  whether 
the  Articles  of  ^Var  were  intended  to  so  apply. 
This  uncertainty  arises  because  of  the  express  con- 
gressional provision  that : 

""idle  aniiics  of  the  United  States  shall 
be  governed  In'  the  following  rules  and 
articles"  (referring  to  the  articles  of  war). 
(10)  Now  if  the  word  "armies"  does  not  include 
militia  in  state  service,  then  can  it  be  said  that  the 
articles  of  war  are  a  part  of  "the  discipline  pre- 
scribed by  Congress"  for  the  militia? 

The  act  of  January  21,  1903  (11)  expressly  pro- 
vides that : 

"The  militia,   when   called   into  the  ac- 


(!))      U.  S.  Const.,  Art.  One,  Sec,  VIII,  par.  U). 

(10)  Sec.  1342,  U.  S.  R.  S.,  being  a  preamble  to 
A.  W. 

(11)  Act  of  January  21,  1903,  known  as  the  Dick 
Law,  32  U.  S.  Stats.,  p.  775. 

26 


SCOPE    OF    MILITARY    LAW. 

tual  service  of  the  United  States,  shall  be 
subject  to  the  same  rules  and  articles  of 
war  as  the  regular  troops  of  the  United 
States." 

This  provision  would  not  have  been  necessary 
if  the  militia  was  clearly  a  part,  or  one,  of  the 
"armies"  of  the  United  States.  The  provision  just 
quoted  is  substantially  a  repetition  of  the  sixty- 
fourth  article  of  war,  and  is  clearly  superfluous. 

Prior  to  January  21,  1903,  Section  1637,  U.  S. 
R.   S.,  provided  that: 

"The  system  of  discipline  and  field  ex- 
ercise which  is  ordered  to  be  observed  in 
the  different  corps  of  infantry,  artillery 
and  riflemen  of  the  regular  army,  shall 
also  be  observed  in  such  corps,  respective- 
ly, of  the  militia." 

But  this  section  was  repealed  in  the  passage  of 
the  Dick  Act  and  it  cannot  now  be  relied  on  as 
prescribing  that  the  articles  of  war  shall  govern  tlic 
militia  in  state  service.  If  it  heretofore  bore  that 
badly  strained  construction,  then  it  now  seems  that 
Congress  has  inadvertently  failed  to  maintain  the 
exercise  of  its  right  to  prescribe  rules  of  "discipline" 
for  the  militia.  Section  three  of  the  Dick  law  does 
provide,  however,  that  the  discipline  of  the  militia 
shall  be  that  of  the  army  by  January  21,  1908.  This 
provision  seems  to  furnish  a  reason  for  concluding 

27 


SCOPE    OF    MILITARY    LAW. 

that  Congress  did  not  refer  to  the  articles  of  war  by 
the  provisions  of  Section  lijol,  R.  S. 

This  act  of  Congress  of  January  21,  1003,  how- 
ever, first  gave  tlie  organized  militia  a  legal  right 
lo  exist,  under  the  U.  S.  Constitution,  as  a  state 
force.  In  addition  to  this  right  to  exist,  the  act 
provided  for  the  use  of  this  same  state  force  by  the 
president;  so  that  now  it  is  possible  to  so  interpret 
the  word  "armies,"  in  the  preamble  to  the  articles 
t)f  war,  that  it  will  include  organized  militia. 

Many  of  the  states  have  adopted,  or  attempted  to 
adopt,  the  articles  of  war  as  a  part  of  their  respect- 
ive military  codes.  The  scope  of  this  work  does  not 
permit  of  an  extended  treatment  of  this  question  ; 
but  the  foregoing  points  will  be  valuable  as  route 
maps  for  further  investigation. 

10.  Other  Sources  of  Military  Law.  in 
state  service  the  constitution  and  statutes  of  the 
guardsman's  own  state  are,  next  to  the  U.  S.  Con- 
stitution and  militia  statutes,  the  most  authoritative 
sources  of  military  law  in  that  state.  Next  come  the 
state  orders. — general  and  special, — thence  down 
through  the  organizations  to  the  unit  to  which  the 
officer  or  enlisted  man  belongs  or  is  attached. 
Where  these  state  orders  are  inadequate,  most 
states  direct  that  the  U.  S.  orders  and  regulations 
shall  govern.  This  is  done  in  conformity  to  the 
Dick  law,  and  is  a  well-considered  attempt  to  secure 

28 


SCOPE    OF    MILITARY    L.\W. 

the  greatest  possible  uniformity  in  state  systems. 
Absolute  uniformity  and  absolute  conformity  to 
federal  statutes  will  be  impossible  until  the  federal 
government  takes  as  full  control  of  the  militia  as  its 
constitution  permits. 

11.  L'.  S.  Orders  and  Regulations.  When 
militia  is  mustered  into  U.  S.  service,  the  control 
of  the  state  ceases  and  the  U.  S.  orders  and  regula- 
tions take  precedence  over  all  state  statutes  and 
orders. 

12.  Customs  of  the  Service  constitute  the  un- 
written military  law.  A  custom  of  the  service,  in 
order  to  become  effective  as  a  rule  of  conduct  or 
action,  must  consist  of  a  uniform  known  practice  of 
long  standing,  which  is  also  certain  and  reasonable, 
arid  is  not  in  conflict  with  any  constitutional  pro- 
vision, existing  statute,  or  order.  It  must  be  so  long- 
continued  and  notorious  that  all  persons  concerned 
may  be  presumed  to  have  knowledge  of  it.    (12) 

13.  Judicial  Decisions.  These  have  an  im- 
portant bearing  on  the  conduct  of  the  national 
guard  when  performing  riot  duty.  Many  courts 
have  laid  down  rules  for  the  guidance  of  the  guards- 


(12)  Winthrop's  Military  Law  and  Precedents, 
Edn.  1896,  p.  44 ;  U.  S.  v.  Duval,  Gilpin  356 ;  Collins 
V.  Hope,  3  Washington,  149 ;  U.  S.  v.  Buchanan,  8 
Howard,  102 ;  2  Greenleaf's  Evidence,  251 ;  Lawson 
on  Usages  and  Customs,  2-15 ;  Wadley  v.  Davis,  59 
Barb.,  503. 

29 


SCOPE    OF    MILITARY    LAW. 

man.  Probably  the  most  important  of  these  rules 
grow  out  of  the  provision  in  the  state  constitutions 
that  the  military  shall  be  subordinate  to  the  civil 
power.  Where,  as  may  sometime  happen,  the  civil 
power  in  any  district  insists  on  a  violation  of  law, 
it  is  apparent  that  the  military  should  no  longer  be 
subordinate.  But  this  prescribed  subordination 
sometimes  renders  a  soldier  liable  in  either  civil 
or  criminal  actions  in  the  state  courts,  in  cases 
where  he  has  exceeded  his  authority  or  acted  with- 
out any.  These  judicial  decisions  will  be  cited  here- 
after in  connection  with  the  duties  to  which  they 
relate. 


30 


CHAPTER  TWO. 


PREPAREDNESS. 


14.  Importance  of  Preparation.  When  war 
was  declared  between  France  and  Germany,  in  IP'70. 
I  be  German  chief  of  the  general  staff  simply  pointed 
to  a  cabinet  drawer.  An  aide  took  a  few  papers 
from  it  and  the  machinery  of  war  was  in  motion 
so  smoothly,  perfectly  and  uncontrollably  that  the 
German  armies  rolled  across  France  without  a  halt. 

When  troops  are  called  for  active  service  it  is 
too  late  to  prepare.  It  is  time  to  go.  This  is  espe- 
cially true  of  militia  called  for  riot  duty.  Celerity 
is  then  often  of  the  highest  importance.  Lives  and 
property  may  be  destroyed  while  officers  are  making 
frantic  efforts  to  repair  their  negligence  in  not  pre- 
paring for  the  very  emergency  for  which  thev  were 
mustered. 

15.  System.  The  national  guard  statutes  of 
many  of  the  states  direct  officers  to  notify  their  men 
for  riot  or  state  duty  in  a  particular  manner.  Men 
so  notified  must  instantly  comply  or  they  may  be 
punished  by  both  the  military  and  civil  courts.  But 
the  company  commander  must  bear  in  mind  that  it 
requires  proof  to  convict  any  accused  person.  In 
the  excitement  of  calling  men  for  riot  duty,  it  is 

31 


PREPARED  iN  ESS. 

essential  that  each  man  receive  a  notice  which  the 
man  knows  to  be  legally  sufricient.  He  should  also 
clearly  understand  the  penalties  for  disobedience 
and  the  disgrace  of  refusing  to  respond.  A  record 
should  be  made  showing  positively  that  each  man 
received  a  copy  of  the  notice.  These  things  sound 
like  troublesome  details,  but  on  the  contrary  they  are 
exceedingly  simple.     System  is  the  vade  mecum. 

16.  Notifying  Men.  One  system  of  notifica- 
tion is  to  divide  the  men  of  a  company  into  four  (or 
more)  sections,  corresponding  to  the  quarters  or 
districts  where  they  reside.  Give  each  district  to  a 
sergeant  and  a  corporal.  These  two  men  are  then 
required  to  keep  triplicate  lists  of  the  home  address 
of  every  man  living  in  their  district;  and  the  busi- 
ness address  of  every  man  employed  in  their  district. 
Each  non-com.  must  habitually  carry  one  list,  the 
third  being  kept  in  the  company  quarters.  These 
triplicate  lists  must  be  constantly  up  to  date.  In 
this  method  a  man  may  be  on  two  lists — if  he  lives 
in  one  district  and  works  in  another — but  that  is 
unavoidable. 

In  addition  to  the  address  lists,  each  of  the  men 
who  carry  them  must  have  a  supply  of  the  printed 
notices  referred  to  in  the  next  section.  He  can  keep 
a  supply  at  home  and  one  at  his  place  of  business — 
both  carefully  secured. 

When  a  call  for  duty  comes  the  company  com- 

33 


PREPAREDNESS. 

mander  must  reach  one  or  both  non-coms,  in  each 
district.  He  does  this  by  phone  or  messenger  or 
both.  The  non-coms,  then  at  once  notify  the  men. 
Each  man  serving  notices  will  carry  one  notice  on 
which   is   written:     "Received  copy  of  the  within 

notice  this day  of 190 .  .  " 

The  date  will  be  filled  in  as  the  non-com.  starts  on 
his  round.  ]f  both  non-coms,  are  available,  they 
can  divide  the  district  by  a  preconcerted  arrange- 
ment. All  men  who  can  be  reached  by  phone  will 
be  first  ordered  in.  Every  man  served  with  a  notice 
will  sign  the  copy  retained  by  the  non-com. 

During  business  hours  the  business  addresses  will 
be  first  used.  It  is  more  difficult  to  find  men  be- 
tween seven  and  ten  P.  M.  than  at  any  other  time. 
If  a  man  to  be  notified  is  not  at  home,  not  at  work 
and  cannot  be  found,  a  member  of  his  family  should 
be  required  to  sign  the  receipt  for  notice  and  a  copy 
will  then  be  left  at  the  house  with  positive  direc- 
tions that  the  copy  be  served  at  once.  The  non- 
com,  can  check  his  list  and  later  make  report  of 
method  of  ser\'ice  on  men  who  do  not  report  at 
armory. 

If  the  list,  receipt  and  notices  are  ready  when  the 
call  for  duty  comes,  an  immense  amount  of  worry 
and  confusion  will  be  avoided.  No  writing  need  be 
done  except  the  signature  of  the  men  and  the  com- 
pletion of  date  of  the  receipt. 

33 


PREPAREDNESS. 

17.  Form  of  Notice.  The  notice  to  be  served, 
under  a  plan  similar  to  the  one  outlined  in  section 
sixteen,   should  be  entirely  printed.      It  should  be 

addressed  :    "To  Any  Enlisted  Man  of  Co , 

Infantry,  N.  G.,"  As  it  com- 
mands the  recipient  to  report  forthwith  at  his  arm- 
ory, it  needs  no  date.  In  states  where  statutes  pre- 
scribe notices,  the  notice  should  conform  to  the 
statute. 

Such  printed  notice  should  contain  statements 
showing  the  importance  of  obeying  it.  The  follow- 
ing form  might  be  used,  changed  to  suit  the  state 
law : 

"NOTICE 
(Under  Section  3098.  Revised  Statutes  of  Ohio.) 

Columbus,  Ohio. 
To  Any  Enlisted  Man 

of  Co.  I,  4th  Infy.,  O.  N.  G. 

You  are  ordered  into  active  service  of  the  State 
of  Ohio,  and  will  report  at  once  to  your  company 
commander  at  the  company  armory : 

By  order  Commanding  Officer  Co.  I,  4th  Infy., 
O.  N.  G.  HAROLD  M.  BUSH, 

Capt.  4th  Infy.,  O.  N.  G. 

Commanding  Co.  I. 

This  notice  to  be  used  only  when  troops  are  called 
out  in  aid  of  civil  authorities.  It  must  then  be 
handed  to  each  man  of  the  company  in  person ;  or 

34 


PREPAREDNESS. 

if  man  cannot  be  found,  it  should  be  left  at  his 
usual  place  of  residence  and  its  importance  ex- 
plained to  the  persons  found  there,  who  should  then 
at  once  take  steps  to  notify  the  man  addressed  that 
such  a  notice  has  been  served.  Promptness  is  of 
the  utmost  importance. 

Section  3099.  R.  S. — 'Every  enlisted  man  who 
refuses  or  neglects  to  serve  such  notice,  when  duly 
ordered  so  to  do,  and  every  officer  or  enlisted  man 
who,  having  been  served  with  notice  as  provided  in 
the  preceding  section,  refuses  or  neglects  to  obey 
the  same  PROMPTLY,  shall  pay  not  less  than  ten 
nor  more  than  one  hundred  dollars.'  " 

18.  General  Notices.  In  addition  to  lists 
suggested  in  section  sixteen,  each  company  com- 
mander should  have  posted  in  his  armory,  at  all 
times,  a  full  and  complete  roster  of  his  organization. 
This  roster  should  disclose  the  residence  addresses, 
places  of  employment,  whether  day  or  night ;  nearest 
available  telephone  and  places  where  men  may  be 
found  when  not  at  home  or  at  work.  Regimental 
and  battalion  commanders  should  keep  the  same 
kind  of  a  roster  for  their  officers.  Arrangements 
should  be  made  by  commanding  officers  for  riot 
signals  to  be  sounded  by  fire  alarm,  court  house  or 
town  hall  bells,  or  by  steam  whistle.  All  officers 
and  men  should  be  taught  to  recognize  these 
signals. 

35 


Preparedness. 

19.  Prepared  Proclamations.  The  statutes 
of  the  United  States,  relative  to  federal  aid  to  states 
in  domestic  disturbances,  provide  specifically  for  a 
preliminary  proclamation  to  the  disorderly  elements 
of  a  communit}-  which  the  civil  power  has  proved 
inadequate  to  control.  Officers  of  state  troops, 
whose  troops  would  be  first  employed  in  the  same 
service,  would  doubtless  do  well  to  cause  civil  offi- 
cers to  use  a  similar  proclamation,  unless  the  laws 
or  regulations  of  their  state  prescribe  another  form. 
It  would  be  well  to  have  a  form  of  proclamation  out- 
lined in  advance  of  an  emergency  which  would  re- 
quire its  use.  This  subject  is  treated,  and  forms  are 
suggested,  in  chapter  twelve. 

30.  Ammunition.  A  supply  of  at  least  two 
thousand  rounds  per  company  should  always  be  kept 
ready  for  instant  issue.  Multiball  cartridges,  if 
available,  should  be  issued  for  street  service  as  the 
.service  bullet  may  penetrate  the  walls  of  private 
dwellings  or  wound  some  citizen  a  mile  or  so  from 
the  scene  of  trouble.  If  the  company  has  its  full 
complement  of  officers,  one  should  be  put  in  charge 
of  the  ammunition.  This  officer  should  pay  close 
attention  to  any  recruits  who  are  called  out  before 
having  fired  the  service  rifle  or  are  awkward  in 
handling  it.  Pie  should  also  look  over  all  the  rifles. 
Men  sometimes  take  rifles  into  the  field  with  the 
firing  pins  and  strikers  so  gummed  with  hardened 

36 


PREPAREDNESS. 

oil  that  the  rifles  cannot  be  fired  before  careful 
cleaning.  A  rifle  in  this  condition  will  pass  inspec- 
tion unless  snapped. 

21.  Equipment.  If  each  man's  entire  field 
equipment  is  issued  and  kept  in  an  individual  locker, 
the  equipment  question  narrows  down  to  the  issu- 
ance of  an  order  designating  what  is  to  be  carried. 
This  order  should  also  indicate  what  clothing  will 
be  worn  and  how  much  ammunition  will  be  issued. 
Everything  should  be  ready  for  heavy  marching  or- 
der. If  equipments  are  not  issued  and  kept  in  indi- 
vidual lockers  a  carefully  considered  order  should 
be  constantly  kept  posted  in  the  property  room,  des- 
ignating, briefly,  how  the  issue  will  be  made  when 
a  call  for  duty  comes. 

22.  Baggage  and  Stores.  Orders  as  to  bag- 
gage and  subsistance  may  or  may  not  be  issued  to 
the  company  commander.  If  order  for  service  re- 
quires an  immediate  movement  of  the  company,  its 
commander  must  moxe  first  and  arrange  baggage 
and  subsistance  details  afterward.  In  such  an  emer- 
gency he  must  do  the  best  he  can  with  reference  to 
the  probable  character  of  the  service.  But  in  order 
to  do  this  he  must  have  everything  ready  to  be  car- 
ried with  the  company  or  sent  to  it.  The  range 
and  cooking  utensils  should  always  be  packed  read}- 
for  shipment  and  always  be  clean  enough  to  pass  an 
inspection.     Immediately  after  every  tour  of  camp 

37 


PREPAREDNESS. 

or  other  duty  the  company  commander  should  not 
rest  until  everything  is  ready  for  the  next  trip. 
Then,  with  his  conscience  cleared  by  the  prepared 
feeling,  he  can  rest  both  mentally  and  physically. 
Tools,  crated  lanterns,  oilcan,  canvas  and  field  desk 
should  have  the  same  attention  as  the  range.  An 
itemized  grocery  order,  equal  to  a  two  days'  ration 
return  for  the  probable  strength  of  the  command, 
should  be  kept  in  the  field  desk.  If  the  cook  shop  is 
carried  and  the  regimental  commissary  fails,  or  the 
company  is  acting  alone,  this  order  will  be  very  use- 
ful. 

23.  Drills.  The  U.  S.  Infantry  drill  regula- 
tions of  1904  omit  the  old  formation  known  as  street 
column,  which  is  found  in  the  preceding  drill  reg- 
ulations. This  formation  was  intended  for  use  in 
riot  duty  and  has  been  so  used  successfully.  In 
marching  down  a  street  where  a  mob  is  likely  to  be 
encountered  this  column  should  be  preceded  by  an 
advance  guard  and  followed  by  a  rear  guard,  both 
of  peculiar  formation.  This  subject  will  be  treated 
in  chapter  sixteen. 

Target  w^ork  is  an  important  part  of  the  prepara- 
tion because  every  man  should  have  enough  famil- 
iarity with  the  rifle  to  enable  him  to  use  it  with  ef- 
fect on  his  opponents  and  without  danger  to  him- 
self and  comrades. 

The  bayonet  exercises  are  also  omitted  from  the 

38 


PREPAREDNESS. 

1904  drill  regulations,  but  will  probably  be  incor- 
porated in  future  editions.  They  are  especially  im- 
portant in  riot  duty  as  they  teach  the  proper  use  of 
the  butt  end  of  a  rifle.  The  butt  of  a  rifle  on  the 
toes  of  the  front  rank  of  a  crowd  is  occasionally 
more  effective  and  less  injurious  than  bayonets  pre- 
sented at  the  owners  of  the  toes. 

Cavalry  horses  are  useless  in  riot  duty  unless 
properly  trained.  They  must  not  only  be  accus- 
tomed to  the  use  of  sabres  and  pistols,  but  also  ren- 
dered fearless  of  fire  crackers  exploding  about  their 
feet.  Fire  crackers  are  a  favorite  resort  of  a  mob 
against  cavalry.  Boys  are  employed  to  use  them 
and,  if  cavalry  is  successfully  dispersed  thereby,  the 
moral  effect  is  bad  for  the  guard.  In  instructing 
the  cavalry  horses  it  is  necessary  to  control  them 
with  the  reins,  legs  and  spurs  only;  never  speaking 
to  or  striking  the  horse.  The  horseman  should  ac- 
custom his  mount  to  hear  his  voice  in  commands 
to  individuals  and  to  shouting  generally.  The  horse 
should  be  taught  to  knock  down  and  trot  over  a 
stuffed  figure  of  a  man  and  not  to  refuse  low  ob- 
structions and  bad  ground.  It  is  a  psychological 
fact  that  a  horse  fears  his  ability  to  encounter  a 
difficulty  whenever  the  rider  exhibits  the  same  dis- 
trust. If  the  rider  thinks  that  a  horse  can  take  a 
certain  fence,  or  makes  the  horse  believe  that  he 
thinks  so,  the  horse  will  try  the  jump.     But  if  the 

39 


PREPAREDNESS. 

man  rides  at  a  fence  in  a  doubtful  mood  as  to  his 
mount's  ability  to  clear  it,  the  horse,  by  some  mystic 
instinct,  feels  the  same  doubt  and  refuses  the  jump. 
This  same  principle  applies  to  all  details  of  training. 

Machine  guns  will  often  be  used  in  riot  duty  and 
other  arms  of  the  service  should  consider  plans  of 
effective  co-operation.  Suggestions  are  made  in 
chapter  sixteen  which  may  serve  to  indicate  the  pre- 
paratory drill  work  for  riot  duty. 

24.  Instruction  in  Riot  Duty.  The  forego- 
ing sections  of  this  chapter  indicate  what  prepara- 
tion should  be  made  for  the  performance  of  riot 
duty.  The  suceeding  chapters  will  attempt  to  out- 
line rules  showing  how  and  when  the  duties  should 
be  performed.  But  all  men  need  practical  instruc- 
tion in  the  performance  of  new  duties.  If  one  wants 
his  watch  repaired  he  don't  take  it  to  a  carpenter. 
If  he  did  the  carpenter  would  probably  decline  the 
job. 

It  should  be  apparent  that  the  guardsman,  in  or- 
der to  be  prepared  for  riot  duty,  must  know  how 
and  when  to  perform  its  very  important  details. 

Schools  of  instruction  are,  therefore,  an  import- 
ant part  of  the  preparation  necessary  for  the  success- 
ful performance  of  the  duties  likely  to  be  assigned. 
In  these  schools  the  various  difficulties  suggested 
may  be  studied,  discussed  and,  in  a  great  degree, 
overcome.    A  fence  doesn't  look  nearly  so  high  after 

40 


PREPAREDNESS. 

3'-oii  have  commenced  to  climb  it  or  tear  it  down. 

The  effect  of  these  schools  will  be  to  overcome 
the  dread  of  this  most  distateful  of  a  guardsman's 
drties.  By  familiarity  with  the  subject  the  nerv- 
ous apprehension  of  a  mistake  disappears. 


^1 


CHAPTER  THREE. 


WHEN  TROOPS  SHOULD  BE  CALLED. 


25.  Constitutions  and  Statutes  Ordinarily 
(iovERN  the  question  as  to  when  state  troops  shall 
be  called  for  state  service.  The  constitutional  and 
statutory  provisions  of  the  different  states  are  so 
va-iant  that  students  are  necessarily  referred  to 
;hese  provisions  of  their  own  state.  It  must  be  borne 
in  mind  that  the  statutes  are  subject  to  occasional 
change. 

26.  Enforcement  of  Unconstitutional  Laws. 
The  fact  that  a  statute  is  unconstitutional 
does  not  disqualify  the  proper  civil  authorities  from 
calling  troops  to  enforce  such  a  statute.  (1)  This 
(juestion  was  decided  in  1857  and  there  seem  to  be 
no  adverse  decisions.  Lideed  it  would  be  beyond 
reason  to  ask  militiamen  to  settle  the  constitutional- 
ity of  laws  which  they  are  called  under  arms  to 
enforce. 

27.  Constitutionality  of  Statutes  Govern- 
ing Calls.  But  where  the  constitution  of  a  State 
goes  so  far  as  to  prescribe  that  the  militia  shall  not 
be  called  into  service  except  in  case  of  rebellion  or 


(1)     Ela.  v.  Smith,  71  Mass.  (5  Gray)  121,  66  Am. 
Dec,  356. 

43 


WHEN    TROOPS    SHOULD    BE    CALLED. 

invasion  and  then  only  when  the  legislature  shall 
declare  that  the  public  safety  requires  it;  the  stat- 
utes of  that  state  may  not  prescribed  other  purposes 
for  which  the  troops  may  be  called.      (2) 

38.  The  State  Constitution  is  the  highest 
law  in  the  state.  When  the  governor  takes  his  oath 
of  office  he  swears  that  all  the  powers  vested  in  him 
by  the  constitution,  either  civil  or  military,  will  be 
exercised  by  him  for  the  purpose  of  preserving  the 
constitution  and  enforcing  the  law  that  is  there 
written. 

The  plain  provisions  of  a  state  constitution  may 
be  fearlessly  carried  out  by  the  state's  chief  exec- 
utive. (3)  The  courts  cannot  rightfully  interfere 
with  his  exercise  of  constitutional  powers.  This  is 
because  the  courts  themselves  derive  all  the  powers 
they  possess  from  the  same  constitution  under  which 
the  governor  acts.  Furthermore,  it  is  certain  that 
when  the  constitution  vests  the  g"Overnor  with  the 
power,  and  charges  him  with  the  duty,  to  suppress 
insurrection,  it  makes  him  the  final  judge  as  to 
whether  a  state  of  insurrection  exists  or  not.      (4) 


(2)  Green  v.  State,  83  Tenn.  (15  Lea)  708. 

(3)  6  A.  &  E.  Ency.  of  Law  (2nd  Edn.)  p.  928; 
Story  on  the  Constitution  (Vol.  1)  Sec.  425;  Luther 
V.  Borden,  7  Howard  1,  43. 

(4)  Cooley's  Constitutional  Limitations  (4th 
Edn.)  p.  50;  Appeal  of  Hartranft  et  al,  85  Pa.  St. 
433. 

43 


when  troops  should  be  called. 

29.  When  Chief  Executive  is  Supreme. 
When  a  state  constitution  does  not  say  that  the 
governor  shall  aid  the  local  civil  authorities  with  the 
mi.'itia  forces  to  subdue  or  suppress  insurrc^ti^ii : 
but  does  empower  such  governor  to  "suppress  in- 
suirection;"  no  statute  can  lawfully  be  passed  which 
will  constitutionally  deprive  the  governor  of  the 
power  to  use  the  state  forces  in  the  suppression  of 
insurrection,  without  aid  or  supervision  by  the  other 
civil  authorities  of  the  state.  The  governor  may, 
when  such  extreme  emergencies  arise,  supplant  the 
civil  authorities  of  a  district  or  county  and  establish 
a  military  district  therein  until  law  and  order  are 
restored.      (5) 

30.  Civil  Officials  Have  Authority  to  De- 
cide. It  has  been  shown  in  section  twenty-eight 
that  the  governor  shall  decide  when  the  moment 
for  calling  troops  has  arrived,  provided  the  consti- 
tution and  statutes  authorize  him  to  make  such  call. 
It  has  also  been  decided  that,  where  these  same  laws 
authorize  other  civil  authorities  to  call  out  troops-, 
the  authorities  so  authorized  have  the  power  to  de- 
termine when  a  call  shall  be  made.  For  instance: 
The  determination  of  the  mayor  of  a  city,  that  a 


(5)  Appeal  of  Hartranft  et  al.,  85  Pa.  St.,  433; 
In  re  Meyer,  85  Pac,  190;  In  re  Boyle,  57  Pac,  706, 
707;  Anderson  v.  Dunn.  6  Wheat.  (U.  S.),  204-206; 
Martin  v.  Mott,  12  Wheat.,  31. 

44 


WHEN    TROOPS    SHOULD    BE    CALLED. 

riot  or  mob  is  threatened,  is  conclusive  that  the 
exigency  exists,  under  the  statute  which  authorizes 
him  to  call  out  the  mihtia  to  aid  the  civil  authority 
in  enforcing  the  laws.      (6) 

31.  IxTERPRETATiON  OF  Laws.  In  reading  the 
laws  which  direct  when  state  troops  shall  be  called, 
it  becomes  important,  before  following  their  man- 
dates, to  determine  the  legal  meaning  of  certain 
terms  there  used.  Those  most  commonly  used  have 
been  defined  by  the  courts  as  follows : 

32.  Rebellion  and  Insurrection.  Rebellion 
"means  such  an  insurrection  against  lawful  author- 
ity as  is  void  of  all  appearance  of  justice."  (7) 
Rebellion  and  insurrection  are  synonymous  except 
in  the  extent  of  the  disturbance.      (8) 

Insurrection  is  the  rising  of  people  in  arms  against 
their  government,  or  a  portion  of  it,  or  against  one 
or  more  of  its  laws,  or  against  an  officer  or  officers 
of  the  government.  It  may  be  confined  to  mere 
armed  resistance,  or  it  may  have  greater  ends  in 
view.      (9) 

(6)  Ela  V.  Smith,  71  Mass.  (5  Gray)  121,  66  Am. 
Dec,  356. 

(7)  Hubbard  v.  Harnden  Express  Co.,  10  R.  I., 
844,  247. 

(8)  State  V.  McDonald  (Ala.)  4  Port.,  449,  455. 

(9)  Anderson  Law  Diet.;  Bouvier  L.  Diet.;  Cen- 
tury Diet.;  Standard  Diet.;  Lieber  Instructions  for 
Government  of  Armies  of  the  United  States  in  the 
Field  (1863),  par.  149;  Field  Service  Regulations,  U. 
S.  A.   (1905)  par.  809. 

45 


WHEN    TROOPS    SHOULD    BE    CALLED, 

Insurrection  closely  resembles  rebellion,  of  which 
in  fact  it  is  an  incipient  form,  in  that  it  is  a  move- 
ment directed  against  the  existence  of  the  govern- 
ment. It  is  distinguished  from  rebellion  in  that  the 
movement  is  less  extensive  and  its  political  or  mili- 
tary organization  is  less  highly  developed.      (10) 

33.  Riot  Defined.  Mob.  A  riot  is  a  tumul- 
tuous disturbance  of  the  peace  by  three  persons  or 
more,  assembling  together  at  their  own  authority, 
with  the  intent  mutually  to  assist  one  another 
against  all  who  shall  oppose  them,  and  afterward 
putting  the  design  into  execution  in  a  turbulent  and 
violent  manner,  whether  the  object  in  question  be 
lawful  or  otherwise.      (11)     What  is  meant  by  a 


(10)  Prize  Cases,  2  Black  (U.  S.)  635;  17  L.  ed. 
459 ;  The  Ambrose  Light,  25  Fed.,  408 ;  Lieber  In- 
structions for  Government  Armies  of  the  United 
States  in  the  Field  (1863),  par.,  157.  The  recogni- 
tion of  the  insurgents  by  foreign  powers,  or  by  the 
government  against  which  the  insurrectionary  move- 
ment is  directed,  gives  to  the  undertaking  the  legal 
and  political  character  of  a  rebellion.  The  Three 
Friends,  166  U.  S,  1,  17  S.  Ct,  495,  41  L.  ed.,  897; 
Page  V.  U.  S.,  11,  Wall.  (U.  S.)  268,  20  L.  ed.,  135; 
Prize  Cases,  supra;  Rose  v.  Himely,  4  Cranch  (U,  S.) 
272,  2  L.  ed.,  608;  The  Ambrose  Light,  supra;  Adlay's 
Wheaton  27b;  Dana's  Wheaton  23  note  15;  Hall  Int, 
L.  5;  22  Cyc,  1452;  see  Sec,  196. 

(11)  State  V.  Stalcup  23,  N.  C.  30,  31,  35  Am. 
Dec,  732;  Marshall  v.  City  of  Buffalo,  64  N.  Y. 
Supp.  411,  413;  People  v.  Judson  (N.  Y.)  11  Daly  1. 
83;  State  v.  Russell,  45  N.  H.,  83,  84. 

46 


WHEN    TROOPS    SHOULD    BE    CALLED. 

disturbance  of  the  peace  can  usually  be  determined 
by  the  circumstances  attending  the  assembly  of  the 
persons  uniting  in  the  tumult.  Thus,  if  a  dozen 
men  assemble  in  a  forest,  and  blow  horns  or  shoot 
guns,  it  would  not  be  a  riot.  But  if  the  same  party 
assembles  at  midnight  in  a  city,  and  marches 
through  the  streets  doing  these  things  and  yelling 
"fire"  and  other  alarming  words,  few  judges  would 
hesitate  to  pronounce  it  a  riot.  (12)  The  term 
"riot"  is  practically  synonymous  with  "mob."  (1'3) 
Thus  where  the  evidence  authorized  a  finding  that 
accused  had  been  guilty  of  violence,  but  it  did  not 
appear  that  the  act  was  committed  in  concert  with 
any  other  person  or  as  a  result  of  conspiracy,  a  con- 
viction for  riot  was  unauthorized.     (14) 

34.  Rebellious  Mob.  The  difference  between 
a  rebellious  mob  and  a  common  mob  is  that  the  first 
is  in  treason  and  the  latter  a  riot.  The  mob  wants 
the  universality  of  purpose  to  make  it  a  rebellious 
mob  or  treason.     (15) 

35.  Occasions  Classified.  There  are  com- 
monly four  general  classes  of  emergencies  in  which 
state  troops  may  or  should  be  called  for  active  serv- 


(12)  State  v.  Brazil  (S.  C.)  Rice,  257,  260. 

(13)  Marshall  v.  City  of  Buffalo,  50  N.  Y.  App. 
Div.,  149,  153. 

(14)  Turner  v.  State,  48  S.  E.,  312,  120  Ga..  350. 

(15)  Harris   v.    N.   Y.   Mutual   Ins.   Co.,   50    Pa. 
(14  Wright)   341,  350. 

47 


WHEN    TROOPS    SHOULD    BE    CALLED. 

ice  by  the  proper  authorities.  These  are  in  addition 
to  the  right  whicli  a  state  has  under  the  federal 
constitution  to  repel  invasion,  which  does  not  come 
within  the  scope  of  this  work.  (16)  The  four 
general  classes  are : 

1.  To  prevent  a  threatened  violation  of  law 
which  the  civil  authorities  of  a  city  or  county  are 
inclined  to  permit. 

2.  To  prevent  a  threatened  violation  of  law  and 
preserve  order  when  the  city  or  county  authorities 
apprehend  a  disturbance  with  which  they  will  be 
unable  to  successfully  cope. 

3.  To  enforce  the  laws  and  restore  order  when 
the  civil  authorities  of  any  district  are  unable  to 
do  so. 

4.  To  enforce  the  laws  and  restore  civil  gov- 
ernment in  a  district  in  which  the  civil  authorities 
have  been  acting  in  conjunction  with  others  in  pro- 
ducing the  disturbances. 

86.  An  Instance  of  the  First  Class  arises 
where  a  certain  act,  such  as  a  prize  fight,  is  prohib- 
ited by  statute,  but  the  local  authorities  have  given 
permission  for  the  fight  to  occur.  In  such  a  case, 
if  the  governor's  constitutional  rights  are  broad 
enough,  he  may  plainly  infonn  the  civil  authorities 
that  he  will  use  military  force  to  prevent  the  ar- 
ranged fight  unless  the  local  authorities  withdraw 


(16)     U.  S.  Const.  Art.  1,  Sec.  10,  par.  3. 

48 


WHEN    TROOPS    SHOULD    BE    CALLED. 

their  permission  and  prevent  the  fight  without  the 
governor's  intervention. 

In  acting  in  this  class  of  occasions  the  governor 
must  be  clearly  within  the  rights  prescribed  by  the 
state  constitution  and  constitutional  statutes.  If  he 
is  authorized  to  act  in  this  class  of  occasions  he  may 
exercise  a  supervision  over  civil  officers,  in  various 
localities,  which  is  often  of  great  benefit  to  the  state. 
He  may  prevent  many  disasters  by  forbidding  the 
minor  evils  which,  by  teaching  disregard  for  law 
and  order,  often  lead  to  later  disturbances. 

37.  An  Instance  of  the  Second  Class  occurs 
where  certain  turbulent  and  lawless  elements  in  a 
community  have  been  stirred  up  either  by  yellow 
journalism  or  other  public  means,  to  a  point  where 
they  show  disregard  for  the  civil  authorities  and 
the  law,  and  plainly  intimate  their  intention  to  act, 
as  a  mob,  to  accomplish  some  specific  purpose.  All 
constitutions  and  laws  should  be  broad  enough  to 
permit  civil  authorities  to  prevent,  by  military  force, 
these  threatening  calamities.  And  when  these  laws 
so  permit,  it  is  the  duty  of  the  civil  authorities,  find- 
ing their  civil  powers  inadequate,  to  take  prompt 
measures  for  the  use  of  military  force  in  order  to 
presei-ve  the  lives  and  property  for  which  they  are 
directly  responsible. 

38.  An  Instance  of  the  Third  Class  arises 
when  the  mischief  lias  already  commenced  and  the 

49 


WHEN    TROOPS    SHOULD    BE    CALLED. 

civil  authorities,  by  actual  conflict  with  the  mob, 
have  demonstrated  their  inability  to  maintain  order. 
It  is  then  incumbent  upon  such  authorities  to  invoke 
the  aid  of  the  military  arm  as  speedily  as  possible 
to  avoid  further  loss,  tumult  and  destruction. 

39.  An  Instance  of  the  Fourth  Class  arises 
where  the  civil  authorities  have  been  acting  with 
the  mob  or,  more  often,  by  reason  of  secret  sym- 
pathy with  the  mob  have  suffered  it  to  proceed  with- 
out any  attempt  to  restrain  it.  These  instances 
amount  to  insurrection  or  rebellion.  It  usually  be- 
comes the  duty  of  the  governor  to  intervene  with  a 
mailed  hand  and  again  establish  justice  and  order. 
If  the  courts,  in  the  tumultuous  district,  show  weak- 
ness, or  sympathy  with  the  lawless  civil  officers,  it 
is  sometimes  necessary  to  establish  absolute  martial 
law  in  the  district. 

40.  Importance  of  ProiMpt  Decision.  The 
foregoing  classification  is  made  for  use  in  consult- 
ing the  state  laws.  It  is  often  of  great  importance 
to  insure  the  safety  of  lives  and  property  by  sup- 
pressing a  riot  in  its  inception.  Most  state  laws 
permit  the  use  of  a  military  force  in  a  threatened 
disturbance.  Where  such  permission  is  given  by 
constitution  or  statute,  a  show  of  force  will  oft- 
times  obviate  the  necessity  for  using  force.  Where 
property  is  destroyed  by  a  mob,  some  state  stat- 
utes require    the    municipalities  to  compensate  the 

50 


WHEN    TROOPS    SHOULD    BE    CALLED. 

owners  for  the  property  so  destroyed.  Ihe  United 
States  Circuit  Court  of  Appeals  has  recently  held, 
with  reference  to  one  of  these  statutes,  as  follows : 

a.  A  city  may  be  held  liable  for  the  destruction 
or  injury  of  property,  in  consequence  of  a  mob  or 
riot  therein,  where  such  liability  is  imposed  by  stat- 
ute; and  it  is  no  defense  to  an  action  for  its  enforce- 
ment that  the  city  exercised  all  its  po\ver  to  prevent 
the  loss,  or  that  the  state  and  federal  governments 
were  also  engaged  in  protecting  the  property. 

b.  In  an  action  against  a  city  to  recover  for 
property  destroyed  and  injured  in  consequence  of  a 
mob  or  riot,  a  proclamation  issued  by  the  mayor 
calling  for  troops  to  suppress  the  riot,  telegrams 
sent  by  him  to  the  governor,  and  similar  official  acts 
are  admissible  in  evidence  to  show  the  conditions 
existing  at  the  time  the  property  was  destroyed. 
(17) 

41.  Use  of  Federal  Militl\.  The  constitu- 
tion of  the  United  States  guarantees  to  every  state 
a  republican  form  of  government,  protection  against 


(17)  City  of  Chicago  v.  Pennsylvania  Co.,  119 
Fed.,  497.  See  also  as  to  similar  statutes:  Marshall 
v  City  of  Buffalo.  68  N.  E..  1119.  1T6  N.  Y.,  545; 
Clear  Creek  Water  Works  Co.,  v.  Lake  County,  45 
Cal.  90;  La.  v.  Mayor,  etc..  109  U.  S.  285,  3  Sup.  Ct. 
Rep..  211 ;  Allegheny  Co.  v.  Gibson,  90  Pa.  St..  397, 
35  Am.  Rep.  670;  Bd.  of  Comr's.  etc..  v.  Church.  62 
Ohio  St.,  718,  78  Am.  St.  Rep.,  718,  57  N.  E.  50. 

51 


WHEN    TROOPS    SHOULD    BE    CALLED. 

invasion  and  against  domestic  violence.  The  lat- 
ter protection  is  afforded  on  application  of  the  leg- 
islature or  of  the  governor  when  the  legislature  can- 
not be  convened.      (18) 

Under  this  constitutional  provision  Congress  has 
stated  when  the  federal  government  shall  interpose 
in  the  affairs  of  any  state.  Both  regular  troops  and 
the  militia  of  other  states  may  be  used  by  the  presi- 
dent in  rendering  federal  aid  to  a  state. 

42.  Federal  Aid.  The  federal  statutes  rela- 
tive to  the  use  of  militia  in  times  of  riot  and  insur- 
rection, when  state  authorities  are  powerless  or  in 
rebelHon,  are  here  set  forth  because  of  their  univer- 
sal application.     They  are: 

"Whenever  insurrection,  domestic  vio- 
lence, unlawful  combinations,  or  conspira- 
cies in  any  State  so  obstructs  or  hinders 
the  execution  of  the  laws  thereof,  and  of 
the  United  States,  as  to  deprive  any  por- 
tion or  class  of  the  people  of  such  State  of 
any  of  the  rights,  privileges,  or  immuni- 
ties, and  the  constituted  authorities  of  such 
State  are  unable  to  protect,  or,  from  any 
cause,  fail  in  or  refuse  protection  of  the 
people  in  such  rights,  such  facts  shall  be 
deemed  a  denial  by  such  State  of  the  equal 
protection  of  the  laws  to  which  they  are 


(18)     U.  C.  Const,  Art.  4,  Sec.  4. 

52 


WHEN    TROOPS    SHOULD    BE    CALLED. 

entitled  under  the  Constitution  of  the 
United  States;  and  in  all  such  cases,  or 
whenever  any  such  insurrection,  violence, 
unlawful  combinations  or  conspiracy,  op- 
poses or  obstructs  the  laws  of  the  United 
States,  or  the  due  execution  thereof,  or 
impedes  or  obstructs  the  due  course  of 
justice  under  the  same,  it  shall  be  lawful 
for  the  President,  and  it  shall  be  his  duty, 
to  take  such  measures,  by  the  employment 
of  the  militia  or  the  land  and  naval  forces 
of  the  United  States,  or  of  either,  or  by 
other  means,  as  he  may  deem  necessary, 
for  the  suppression  of  such  insurrection, 
domestic  violence,  or  combinations."  Sec. 
5299,  U.  S.  Rev.  Stats. 

"Whenever,  by  reason  of  unlawful  ob- 
structions, combinations,  or  assemblages 
of  persons,  or  rebellion  against  the  author- 
ity of  the  Government  of  the  United 
States,  it  shall  become  impracticable,  in 
the  judgment  of  the  President,  to  enforce, 
by  the  ordinary  course  of  judicial  pro- 
ceedings, the  laws  of  the  United  States 
within  any  State  or  Territory,  it  shall  be 
lawful  for  the  President  to  call  forth  the 
militia  of  any  or  all  the  States,  and  to 
employ  such  parts  of  the  land  and  naval 

53 


WHEN    TROOPS    SHOULD    BE    CALLED. 

forces  of  the  United  States  as  he  may 
deem  necessary  to  enforce  the  faithful  exe- 
cution  of  the  laws  of  the  United  States, 
or  to  suppress  such  rebellion,  in  whatever 
State  or  Territory  thereof  the  laws  of  the 
United  States  may  be  forcibly  opposed,  or 
the  execution  thereof  forcibly  obstructed." 
Sec.  5298,  U.  S.  Rev.  Stats. 

"In  case  of  an  insurrection  in  any  State 
against  the  government  thereof,  it  shall  be 
lawful  for  the  President,  on  application  of 
the  legislature  of  such  State,  or  of  the  ex- 
ecutive, when  the  legislature  can  not  be 
convened,  to  call  forth  such  number  of 
the  militia  of  any  other  State  or  States 
which  may  be  applied  for,  as  he  deems  suf- 
ficient to  suppress  such  insurrection ;  or, 
on  like  application,  to  employ,  for  the  same 
purposes,  such  part  of  the  land  or  naval 
forces  of  the  United  States  as  he  deems 
necessary."     Sec.  5297,  U.  S.  Rev.  Stats. 

"Whenever,  in  the  judgment  of  the 
President,  it  becomes  necessary  to  use  the 
military  forces  under  this  title,  the  Presi- 
dent shall  forthwith,  by  proclamation, 
command  the  insurgents  to  disperse  and 
retire  peaceably  to  their  respective  abodes, 

54 


WHEN    TROOPS    SHOUF.D    BE    CALLED. 

within  a  limited  time."     Sec.  5300,  U.  S. 
Rev.  Stats.     (19) 

43.  Application  for  Federal  Aid  must  be 
made  by  the  State  legislature  when  it  is  in  session 
or  can  be  convened.  If  it  cannot  be  convened,  for 
lack  of  time  or  other  reason,  the  governor  should 
apply  personally  to  the  president.  In  such  applica- 
tion he  must  state  that  the  legislature  cannot  be 
convened  and  that  the  civil  and  military  powers  of 
the  state  are  inadequate  for  the  emergency. 


(19)  For  a  history  of  the  exercise  of  these  powers 
see:  "Federal  Aid  in  Domestic  Disturbance,"  W.  D. 
1903,  Senate  Document  209,  57th  Congress;  Birk- 
himer,   Mil.   Govt,   and   Mar.   Law. 


55 


CHAPTER  FOUR. 


ASSEMBLY  BEFORE  RECEIPT  OF  ORDERS 


44.  Advisability.  It  is  sometimes  important 
for  guard  officers  to  have  their  men  in  their  armor- 
ies, ready  for  work,  when  the  orders  therefor  are 
received.  At  other  times  this  is  impossible.  At 
still  other  times  such  assembly  is  improper.  Exist- 
ing conditions  must  determine  these  questions. 
There  are  occasions  when  the  sight  of  guardsmen 
hurrying  to  their  quarters,  in  or  out  of  uniform, 
may  have  a  quieting  effect  upon  a  threatened  dis- 
turbance. There  are  other  occasions  when  such 
action  causes  additional  excitement  and   irritation. 

45.  Regulations.  The  regulations  of  some 
states  prescribe  that,  when  guard  officers  are  ad- 
vised of  an  impending  disturbance,  these  officers 
shall  quietly  warn  their  men  that  a  call  is  imminent 
or  probable  and  shall  proceed  quietly  to  prepare 
their  troops  for  action  in  anticipation  of  an  order 
therefor.  In  states  where  such  regulations  obtain, 
guard  officers  should  act  as  directed  by  the  regula- 
tions. On  failure  to  do  so  they  may  become  amen- 
able to  a  court-martial  for  their  neglect  of  duty. 

46.  Where  no  Regulations  Exist    requiring 

66 


ASSEMBLY  BEFORE  ORDERS. 

the  troops  to  prepare  or  assemble  before  a  call  for 
duty,  company  commanders  may  use  their  discre- 
tion as  to  warning  the  men  for  duty.  If,  in  their 
judgment,  the  assembly  of  men  would  occasion 
greater  disorders,  by  reason  of  the  antagonism  that 
might  be  excited,  a  public  assembly  might  tend  to 
precipitate  trouble.  In  such  case  the  assembly 
should  be  made  secretly  and  only  when  a  call  seems 
imminent.  On  the  other  hand,  where  the  disturb- 
ance is  not  in  the  vicinity  where  the  troops  are  sta- 
tioned, their  assembly  can  rarely  do  harm  in  a  com- 
munity where  the  assembly  is  made.  In  this  last 
instance,  unless  there  is  danger  of  precipitating  im- 
mediate action  by  the  insurgents  in  the  troubled 
district,  news  that  troops  are  assembling  at  a  nearby 
station  causes  the  more  cautious  men  of  the  mob  to 
hesitate;  and  he  who  hesitates  is  lost  to  the  mob,  as 
a  rule. 

47.  Care  of  Public  Property.  When  a  tu- 
mult near  troop  quarters  is  expected,  the  public 
property  may  be  considered  in  danger.  This  is  es- 
pecially true  of  the  arms  and  ammunition.  The 
company  commander  must  not  wait  for  orders  be- 
fore taking  means  to  protect  this  property.  If  he 
deems  the  emergency  sufficient  he  may  order  a  suit- 
able guard  to  care  for  the  property.  This  guard  is 
ordinarily  treated  as  a  Cossack  post.  If  only  three 
men  are  used  they  may  relieve  one  another  as  sen- 

57 


ASSEMBLY  BEFORE  ORDERS. 

tinel,  in  the  usual  way,  and  all  may  be  required  to 
remain  under  arms.  In  this  case  one  of  the  men 
should  be  a  non-commissioned  officer  or  experienced 
soldier. 

48.  Cautionary  Orders.  It  often  happens 
that  a  company,  battalion,  or  regimental  commander 
receives  orders  to  hold  his  troops  in  readiness  for 
riot  duty.  Such  an  order,  if  from  a  lawful  source, 
is  an  order  of  the  governor  and  is  in  many  instances 
tantamount  to  an  order  for  service,  although  the 
men  may  not  subsequently  leave  their  quarters.  If 
such  an  order  is  sufficiently  specific  the  company 
commander  should  spend  his  spare  time,  after  as- 
sembly, in  perfecting  the  details  for  the  anticipated 
duty  and  he  must  not  forget  to  make  out  his  morn- 
ing reports,  and  send  same  forward,  showing  the 
number  of  men  assembled  for  duty.  In  such  an 
emergency  it  is  commonly  the  custom  to  contract 
for  meals  for  the  men  at  a  nearby  restaurant  unless 
the  character  of  the  order  received  indicates  that 
time  will  be  afforded  for  the  establishment  of  a  reg- 
ular commissariat. 

49.  Conduct  of  Officers.  The  behavior  of 
the  officers  at  all  times  during  riot  duty  is  a  matter 
of  great  importance.  No  officer  should  take  a 
drink  no  mafter  how  badly  he  thinks  he  needs  it. 
The  reasons  for  this  will  be  explained  in  chapter 
seven. 

58 


ASSEMBLY  BEFORE  ORDERS. 

It  is  noticeable  that  officers,  no  matter  how  com- 
petent and  courageous,  often  get  their  nerves  jang- 
led up  during  the  preparation  for  active  service  and 
betray  a  nervousness  of  manner  which  is  readily 
communicated  to  the  men  and  is  the  cause  of  un- 
necessary shouting  and  excitement.  It  sometimes 
produces  a  bad  effect  upon  recruits  or  the  younger 
members  of  the  organization.  This  state  of  nerv- 
ousness quickly  leads  to  dangerous  mistakes.  There- 
fore the  officers  should  constantly  maintain  calm- 
ness of  demeanor,  should  give  their  orders  quietly 
and  without  betraying  any  excitement,  should  avoid 
the  appearance  of  hurry,  even  while  doing  things 
quickly  and  above  all  should  keep  at  work.  They 
must  keep  at  work  because  it  is  the  surest  way  of 
allaying  their  own  nervousness  and  is  what  they 
are  there  for.  The  officer  must  keep  the  men  em- 
ployed for  the  same  reasons. 

50.  Conduct  of  Men.  While  men  are  await- 
ing orders  or  preparing  for  riot  duty  they  must  be 
kept  under  rigid  supervision  and  control.  Any  ten- 
dency to  nervousness  and  excitement  must  be  com- 
bated by  means  most  available  to  the  commanders. 
The  men  must  not  be  allowed  to  enter  saloons  or 
carry  intoxicants  in  their  canteens,  baggage,  or  on 
their  persons.  Everything  they  do  should  be  done 
quietly.  If  the  men  are  kept  constantly  employed 
they  will  be  much  more  easily  controlled  and  their 

59 


ASSEMBLY  BEFORE  ORDERS. 

nervousness  will  disappear  by  requiring  them  to  con- 
centrate their  attention.  Upon  assembly  for  duty 
some  of  the  younger  men  sometimes  make  a  display 
of  private  weapons.  They  should  not  be  permitted 
to  handle  cheap  grades  of  revolvers  about  the  arm- 
ory and  should  be  warned  against  keeping  such 
weapons  loaded  in  quarters.  The  company  com- 
mander may  use  his  discretion  as  to  whether  or  not 
the  men  should  carry  these  private  weapons.  He 
may  permit  them  in  some  instances  and  forbid  them 
in  others,  or  prohibit  them  altogether,  as  he  sees  fit. 
If  time  permits  he  should  inspect  those  which  he 
permits  the  men  to  carry. 

51.  Subsisting  Men  Before  Orders  Re- 
ceived. If  the  company  commander  apprehends 
that  a  call  will  be  forthcoming,  and  orders  his  men 
to  assemble  to  await  such  call,  the  question  of  pay- 
ing for  subsistence  arises  unless  the  call  be  imme- 
diately received.  Unless  the  commander's  company 
funds  are  in  shape  to  stand  the  strain,  and  even  if 
they  are,  the  commander  may,  at  this  time,  use  a 
long  distance  telephone  to  advantage  and  secure  the 
cautionary  order  mention  in  section  forty-eight. 
Under  such  an  order  he  can  make  contracts  in  the 
name  of  the  state  and  avoid  company  and  individual 
responsibility  for  expenditures.  The  pay  of  the  men 
could  be  arranged  for  in  the  same  way.  If  the 
company  commander  can  not   secure  authority   to 

60 


ASSEMBLY  BEFORE  ORDERS. 

make  contracts  for  subsistence,  he  may  relieve  his 
men  for  meals  by  sections :  but  should  make  them 
understand  that  they  are  under  orders  and  must  re- 
Unn  to  quarters  or  become  guilty  of  violations  of 
military  law. 


61 


CPIAPTER  FIVE. 


WHO  MAY  CALL  OUT  TROOPS. 


52.  State  Constitutions  and  Statutes.  It 
is  again  necessary  to  refer  the  student  to  the  con- 
stitutional and  statutory  provisions  of  his  own  state 
in  order  to  determine  which  of  the  civil  authorities 
are  authorized  to  call  out  troops.  The  same  pro- 
visions which  state  when  troops  are  to  be  called  out, 
referred  to  in  section  twenty-jfive,  are  to  be  con- 
sulted in  order  to  learn  who  may  make  the  call.  In 
the  absence  of  any  constitutional  or  statutory  direc- 
tions the  governor  of  a  state  has  the  right  to  invoke 
the  aid  of  the  state  troops  in  extreme  emergencies. 
This  right  necessarily  follows  the  institution  of  a 
republican  form  of  government  with  its  triune  divi- 
sion of  governmental  functions :  executive,  legisla- 
tive and  judicial.  The  Supreme  Court  of  the  United 
States  has  held : 

"Unquestionably  a  state  may  use  its  mil- 
itary power  to  put  down  an  armed  insur- 
rection too  strong  to  be  controlled  by  the 
civil  authority.  Power  is  essential  to  the 
existence  of  every  government,  essential 
to  the  preservation  of  order  and  free  insti- 

62 


WHO    MAY    CALL    OUT    TROOPS. 

tutions  and  is  as  necessar}-  to  the  States 
of  this  Union  as  any  other  government. 
The  State  itself  must  determine  the  degree 
of  force  the  crisis  demands."  (1) 
The  power  to  do  the  things  indicated  in  the  above 
quotation  is,  in  the  states  of  the  American  Union, 
almost  universally  vested  in  the  chief  executive.  In 
England,  because  of  the  profligacy  and  irresponsi- 
bility of  certain  nionarchs,  this  power  was  grad- 
ually taken  from  them  and  retained  by  the  legisla- 
tive branch  of  its  government.  Our  federal  con- 
stitution has,  in  some  degree,  divided  the  war  power 
between  the  president  and  congress.  This  was 
done  because  of  the  experiences  of  our  English  for- 
bears. Notwithstanding  this  attempted  division  of 
the  war  power  by  the  federal  constitution,  the  legal 
authority  of  the  president,  when  ordinary  civil 
methods  have  failed  to  control  affairs,  is  much 
greater  than  that  of  the  king  of  England.  This  is 
true,  even  in  a  higher  degree,  of  the  governors  of 
the  various  states.  The  only  exceptions  in  the  case 
of  the  governor  are  where  the  constitution  of  his 
state  gives  to  the  legislative  branch  of  the  state  the 
power  to  act  in  insurrection  and  domestic  disturb- 
ances and  where  the  constitution  forbids  these 
powers  to  the  governor. 

53.     The   President  of  the  United    States, 


(1)     Luther  v.  Borden,  7  How.,  45-6. 

63 


WHO    MAY    CALL    OUT    TROOPS. 

under  the  federal  constitution  and  laws,  may,  and 
often  has,  taken  a  hand  in  restoring  order  in  a  state 
even  when  not  directly  called  upon  to  do  so.  In  such 
case  he  may  use  the  regular  army  and  the  militia 
of  other  states.      (2) 

5-i.  The  Governor  is  almost  invariably  clothed 
/with  constitutional  and  statutory  powers  relative  to 
I  the  use  of  state  forces,  he  being  the  highest  civil  au- 
thority in  the  executive  department  of  the  state. 
(3)  He  should  be  at  once  informed  of  any  dis- 
turbance, within  the  state,  which  will  probably  be  of 
a  serious  character  and  may  get  beyond  the  control 
of  the  civil  authorities  of  the  city  or  county.  By 
communicating  with  the  governor  when  serious  dis- 
orders are  apprehended,  civil  authorities  give  the 
military  department  of  the  state  an  opportunity  to 
act  effectively  in  preventing  disturbances.  These 
civil  authorities  also  place  a  part  of  the  responsibility 
for  subsequent  destruction  of  lives  and  property,  if 
any,  upon  the  chief  executive.  But  this  is  only  so 
when  they  have  conscientiously  and  diligently  used 
their  civil  powers  to  the  utmost  in  attempting 
thereby  to  preserve  the  peace. 

55.  Other  Civil  Authorities.  The  laws  of 
many  states  provide  that  certain  civil  authorities 
may  call  the  militia  to  their  aid  in  ciuelling  a  dis- 


(2)  See  Sec.  42  and  note. 

(3)  See  cases  cited  under  Sec.  55. 

64 


WHO    MAY    CALL    OUT    TROOPS. 

turbance.  These  statutes  usually  provide  that  a 
sheriff,  a  mayor,  or  a  judge  of  a  certain  court  may 
issue  his  call  to  the  commanding  officer  of  any  reg- 
iment, or  other  unit,  to  report  his  troops  at  a  certain 
place  to  aid  the  civil  authorities.  An  officer  called 
under  such  a  statutory  provision  should  at  once  re- 
port, by  telephone  or  telegram,  to  the  governor,  giv- 
ing the  substance  of  the  call.  He  thereafter  obeys 
the  civil  authorities  in  their  general  directions  ex- 
cept in  cases  where  the  governor  issues  conflicting 
instructions.  In  such  cases  the  orders  of  the  gov- 
ernor are  supreme  and  the  officer  may  safely  dis- 
regard orders  conflicting  therewith.  This  is  because 
the  governor  is  the  highest  civil  authority  in  the 
state  and  is  the  chief  of  the  executive  branch  of  the 
government.  To  permit  the  orders  of  a  judge  to 
control  troops,  as  against  definite  orders  of  the  gov- 
ernor, would  be  permitting  the  judicial  branch  of 
the  government  to  usurp  the  functions  of  the  exec- 
utive branch  of  the  same  government.      (4) 

56.     Jurisdiction   of   Minor   Civil  Authori- 
ITIE.S.     The    statutes    referred  to  in  the  preceding 


(4)  Appeal  of  Hartranft  et  al.,  85  Pa.  St.  433; 
State  ex  rel  v.  Warmouth.  Governor,  et  al.,  22  La. 
Ann.  Rep.  1;  Mauran,  Adj't.  Gen'l.  v.  Smith.  Gover- 
nor, 8  R.  I.  Rep.,  192;  The  People  ex  rel  v.  Bissell. 
Governor,  19  Ills.,  229;  State  ex  rel  v.  Towns,  Gov- 
ernor, 8  Ga.,  360;  Hawkins  v.  Governor,  1  Ark..  570: 
Mott  et  al.  V.  Penna.  Co.  et  al.,  6  Casey,  33. 

65 


WHO    MAY    CALL    OUT    TROOPS. 

sections  are  sometimes  so  drawn  that  the  mayor  of 
a  city,  in  reading  these  provisions,  conceives  that  he 
has  the  right  to  order  any  and  all  state  troops  to 
his  aid.  These  statutory  provisions  also  indicate 
that  the  sheriff  of  a  county  has  the  same  right.  But 
this  construction  is  erroneous.  (5)  The  mayor 
of  a  city  may  address  his  call  to  only  such  troops 
as  are  stationed  within  the  city.  The  sheriff  of  a 
county  may  address  his  call  only  to  such  troops  as 
are  stationed  within  the  county.  The  judge  of  a 
district  may  only  call  out  troops  within  his  district. 
No  one  but  the  governor,  or  the  legislature  in  spe- 
cified cases,  may  issue  a  general  call.  If  this  were 
not  true  a  regimental  commander  might  receive  im- 
perative orders  to  hasten  his  forces  to  a  hundred  dif- 
ferent places  at  the  same  time. 

In  cases  where  civil  authorities  require  the  aid  of 
troops,  and  no  troops  are  stationed  within  their  dis- 
trict, county  or  city ;  such  civil  authorities  must  ap- 
peal to  the  governor  directly.  This  appeal  should 
be  a  telegram  in  order  that  a  record  may  be  pre- 
served of  it.  It  should  state  sufficient  facts  to  en- 
able the  governor  to  determine  the  advisability  of 
sending  troops. 

57.  Appeal  to  Governor.  Where  civil  author- 
ities are  authorized  by  law  to  call  out  troops,  it  is 
nearly  always  advisable  for  such  authorities  to  re- 

(5)  So  held  by  Governor  Nash,  of  Ohio,  an  able 
lawyer;  and  by  his  attorney  general. 


WHO    MAY    CALL    OUT    TROOPS. 

quest  the  governor  to  issue  the  order.  Such  a 
course  avoids  subsequent  embarrassment  as  to  sub- 
sistence of  troops,  pay  of  troops  and  many  other 
matters.  This  course  is  best  because  it  gives  the 
governor  and  the  other  civil  authorities  a  common 
responsibility  and  avoids  unnecessary  friction.  For 
instance:  A  mayor  orders  out  a  battahon  of  militia 
in  his  city  and  the  commanding  ofificer  reports  to 
the  governor.  If  this  is  the  first  intimation  that  the 
governor  has  that  a  call  has  been  made,  he  requires 
information  from  the  mayor.  A  misunderstanding 
occasionally  arises  because  the  mayor  may  at  first 
assume  the  position  that  his  orders  are  of  equal 
force  with  those  of  the  governor.  The  mayor  may 
not  realize  that  both  militarv  law  and  civil  law  re- 
c|uire  the  commanding  officer  to  implicitly  obey  the 
orders  of  the  governor.  No  commanding  officer 
can  successfully  serve  two  masters  unless  these  mas- 
ters are  in  harmony  and  act  together. 

58.  Conflicting  Orders  for  Service.  In 
1U04  the  Kentucky  court  of  appeals  decided  that, 
where  militia  were  called  out  by  the  legal  governor 
and.  while  on  duty,  received  conflicting  orders 
(from  the  followers  of  two  aspirants  for  gubernat- 
orial honors)  to  disband  and  also  to  remain  on  duty: 
the  militia  might  remain  on  duty  until  the  com- 
manding officer  received  an  order  on  which  he  could 

67 


WHO    MAY    CALL    OUT    TROOPS. 

rely.  (6)  This  sounds  like  a  case  for  federal  in- 
tervention; but  the  matter  was  adjusted  inter  scsc 
after  the  murder  of  one  of  the  rivals.  In  this  in- 
stance the  militia  officers  were  placed  in  a  delicate 
position.  They  were  afraid  of  being  charged  with 
desertion  if  they  obeyed  the  order  to  disband;  but 
they  so  conducted  matters  as  to  maintain  the  good 
will  of  all  law-abiding  citizens. 


(6)     Sweeney  v.   Commonwealth,   82    S.  W.,   639, 
26  Ky.  Law  Rep.,  877. 


68 


CHAPTER  SIX. 


ORDERS  AND  REPORTS. 


50.  Written  Orders.  Orders  relative  to  riot 
duly  should  always  be  in  writing.  If  a  command- 
ing officer  of  troops  receives  a  verbal  or  telephone 
order  from  a  civil  officer  ordering  troops  on  duty^ 
he  should  request  that  it  be  put  in  writing  at  once. 
(1)  The  commanding  officer  may  act  upon  the 
verbal  order  until  the  written  order  is  received,  but 
he  should  not  fail  to  secure  it  as  soon  as  possible. 
Such  commanding  officer  should  endorse  on  the 
written  order  the  exact  time  of  its  receipt  by  him, 
for  future  reference.  Other  and  succeeding  orders 
should  be  treated  in  the  same  way. 

60.  An  Order  for  Troops  is  properly  addressed 
to  the  commanding  officer  of  the  troops  required. 
This  order  varies  in  form  according  to  the  circum- 
stances. 

1.  If  the  occasion  comes  within  the  first  class 
mentioned  in  section  thirty-five  the  order  would 
probably  require  the  commanding  officer  to  assemble 
his  troops  and  await  further  orders.     Thereafter  a 

(1)  "When  a  statute  directs  notice  to  be  given  the 
rule  is  that  it  is  to  be  given  in  writing,  in  which  re- 
spect it  differs  from  the  common  law."  Court  in 
Church  V.  Co.  of  Phila.,  4  Pa.  Law  J.,  184  (153). 

69 


ORDERS    AND    REPORTS. 

succeeding  order  from  the  governor,  through  his 
adjutant  general,  might  he  received  requiring  the 
troops  to  be  moved  to  a  certain  point  and  specificahy 
pointing  out  services  to  be  there  rendered. 

2.  If  the  occasion  comes  within  the  second  class 
mentioned  in  section  thirty-five,  the  order  by  the 
proper  civil  authority  would  be  directed  to  the  com- 
manding ofiicer  of  the  troops  required,  commanding 
Iiim  to  assemble  his  troops  and  report  to  a  certain 
civil  officer  at  a  certain  place,  either  forthwith  or 
at  a  certain  time,  in  aid  of  the  civil  authorities. 

;>.  In  occasions  of  the  third  class,  mentioned  in 
section  thirty-five,  the  order  would  be  practically 
the  same  as  that  for  the  second  class. 

4.  In  occasions  of  the  fourth  class,  mentioned 
in  section  thirty-five,  the  order  would  come,  in  al- 
most every  instance,  from  the  governor  and  would 
direct  the  commanding  officer,  of  the  troops  re- 
quired, to  assemble  such  troops,  proceed  to  the 
scene  of  disturbance  and  establish  whatever  degree 
of  martial  law  was  necessary  to  restore  civil  gov- 
ernment. (2)  In  this  class  of  cases  many  suc- 
ceeding orders  would  naturally  be  received  by  com- 
manding officers.  These  should  not  be  telephoned 
except  where  no  other  means  of  rapid  communica- 
tion were  at  hand.     When  telephoned  they  should 


(2)      See  full  text  of  an  order  by  the  governor  of 
Pennsylvania,  at  Sec.  211. 


ORDERS    AND    REPORTS. 

be  taken  do\vn  in  writing  and  read  back  to  the  su- 
perior. One  small  pocketbook  containing  the  com- 
manding officer's  orders  should  be  his  most  im- 
portant possession  at  this  time.  The  best  form  for 
such  book  is  the  ordinary  telegraph  blank  book, 
with  alternate  ruled  and  blank  pages,  and  a  sheet  of 
carbon  paper. 

61.  Form  of  Order  for  Troops.  Orders  from 
general  headquarters  of  a  state,  if  issued  by  the  ad- 
jutant general,  should  bear  the  statement,  "By  com- 
mand of  Governor ."     It  has  been  held 

that  an  order  issued  '"B}-  direction  of  the  Secretary 
of  War"  cannot  be  regarded  as  the  order  of  the 
president.  (3)  Therefore  an  order  by  direction 
of  the  adjutant  general  might  not  afterwards  be 
held  to  be  the  order  of  the  governor.  An  inter 
esting  form  of  order,  which  applies  to  the  second 
and  third  classes  mentioned  in  the  preceding  sec- 
tion, is  set  out  in  lull  in  an  old  Massachusetts  stat- 
ute which  specifies  who  may  call  out  troops  in  cer- 
tain emergencies;  it  provides  that  such  call,  if  issued 
by  a  court,  shall  be  in  substance  as  follows: 

" SS. 

COMMONWEALTH    OF    MASSACHUSETTS 

L.  S.    To A.  B. 

(Insert  the  officer's  title) 

Commanding    

(.Insert  his  command) 

(3)     Truitt  V.  U.  S.,  38  Ct.  CI.,  398. 

71 


ORDERS    AND    REPORTS. 

\Miereas,  it  has  been  made  to  appear  to  our  jus- 
tices of  our ,  now  holden  at 

,  within  and  for  the  county  of , 

that    

(here  insert  description  of  tumult  in  such  terms  as  to  show  that 
officer  signing:  hereunder  has  lethal  rii^ht  to  call  for  troops) 

in  our  county  ot    

,  and  that  mihtary  force  is  necessar}-  to 

aid  the  civil  authority  in  suppressing  the  same: 
now,  therefore,  we  command  you  that  you  cause, 

(here  state  the  number  and  kind  of  troops  required) 

armed,  equipped  and  with  ammunition,  as  the  law 
directs,  and  with  proper  officers,  either  attached  to 

the  troops  or  detailed  by  you,  to  parade  at 

,  on ,  then  and  there  to 

obey  such  orders  as  may  be  given  them,  according 
to  law.  Hereof  fail  not,  at  your  peril,  and  have  you 
ihere  this  writ  with  your  doings  returned  thereon. 

Witness,   L.  S.,  Esquire,  at   , 

on  the day  of ,  in  the  year 

C.  D.  CLERK." 

While  this  form  is  unnecessarily  long,  it  is  here 
inserted  as  a  guide  which  may  be  varied  to  suit  the 
circumstances.  It  has  one  defect  i.  e.,  it  does  not 
specify  to  ivhom  the  commanding  officer  shall  re- 
port. Under  many  statutes  this  order  by  a  civil  au- 
thority could  read  as  follows: 

72 


ORDERS    AND    REPORTS. 

"To  Colonel  C.  S.  Ammel, 

Commanding  4th  Infantry, 
Ohio  National  Guard. 
Sir : — A  mob  has  assembled  at  Jones'  Garden, 
South  High  street  and  city  line.  It  threatens  to 
destroy  Alaska  Steel  Company's  plant  and  has  de- 
feated my  posse.  Assemble  Companies  A,  B,  C, 
and  I.  4-th  Infantry,  O.  N.  G.,  and  report  forthwith 
to  me  at  County  Jail. 

GEORGE  KARB, 
Sheriff  of  Franklin   County,   Ohio. 
Columbus.  Ohio,  January  30,  1906.     11  P.  M." 

G2.  Acknowledging  Receipt  of  Orders.  One 
of  the  first  things  the  commanding  officer  must  do, 
after  receiving  his  call  for  duty,  is  to  report  receipt 
of  the  order  and  designate  exactly  where  he  can 
be  found  from  that  time  until  he  shall  again  report. 
This  is  ver}-  important  because  the  governor  or  other 
civil  authority  calling  out  troops,  if  in  ignorance 
as  to  the  fate  of  his  order,  is  absolutely  at  sea  as  to 
further  procedure.  If  the  order  for  troops  has  not 
come  from  the  governor  the  officer  should  forward 
its  substance  to  the  governor  at  once,  as  previously 
mentioned.  (4)  Receipt  of  all  subsequent  orders 
should  also  be  acknowledged  when  their  importance 
is  such  as  to  indicate  that  any  anxiety  may  be  felt 
by  the  officer's  superior. 


(4)      See  Sec.  55. 

73 


orders  axd  rkports. 

68.  The  First  Orders  of  the  Commanding 
Officer,  so  called  upon  to  assemble  his  troops, 
should  issue  at  once  to  his  subordinates.  The  time 
of  issuance  of  these  orders  should  be  noted  in  the 
officer's  pocketbook.  J  f  these  orders  are  issued  by 
a  company  commander  their  execution  is  of  course 
seen  to  personally.  If  issued  by  a  regimental  com- 
mander he  must  require  reports  as  to  how  the  troops 
are  assembling  and  when  they  will  be  ready  for  the 
services  required.  In  this  last  case  the  company 
commander  should  keep  in  constant  touch  with  the 
headquarters  office.  Orders  among  officers  of  a  na- 
tional gu:\rd  organization,  when  called  into  service, 
should  be  sufficiently  definite  to  enable  the  inter- 
ested officers  to  recall  their  character  and  the  time 
when  given.  If  every  commanding  officer  makes  a 
memorandum  in  his  pocketbook  of  the  issue,  sub- 
stance and  receipt  of  each  order,  difficulty  may  be 
avoided.  I'he  information  thus  noted  is  necessary 
in  making  up  reports  of  the  tour  of  duty. 

64.  Communication  With  the  Governor 
should  be  kept  constantly  open  by  the  commanding 
officer  of  troops  on  riot  duty.  Frequent  reports 
should  be  made  to  the  governor  as  to  the  progress 
of  the  troops  in  quelling  the  disturbance.  The  com- 
manding officer  must  remember  that  the  governor 
is  probably  waiting  at  his  office,  in  great  distress  of 
mind    and    anxiety    relative  to  the  situation.     He 

74 


ORDERS    AND    REPORTS. 

should  also  remember  that  time  drags  very  slowI\ 
to  the  governor  under  such  conditions  and  that  five 
minutes  of  anxious  waiting  may  often  seem  like 
an  hour  to  him. 

(35.  Subsequent  Orders  From  Civil  Author- 
ities. When  troops  are  acting  in  aid  of  civil  au- 
thorities the  commanding  officer  may  require  all  or- 
ders from  such  civil  authorities  to  be  in  writing 
whenever  possible.  Another  matter  of  importance 
i>  to  secure  the  actual  attendance  of  the  county 
sheriff,  mayor,  or  other  proper  civil  authorities 
while  quelling  the  disturbance.  For  instance:  the 
troops  are  acting  under  the  general  order  of  the 
sheriff.  It  becomes  necessary,  for  the  first  time,  to 
order  the  troops  to  fire  and  precipitate  a  general  con- 
flict. At  such  a  moment  it  is  of  the  utmost  import- 
ance to  have  the  sheriff*  by  the  elbow.  Require  him 
to  give  the  order.  Hien  give  the  command  to  fire. 
Tf  the  sheriff  is  absent  when  such  a  command  is 
given,  (still  assuming  that  troops  are  acting  in  aid 
of  the  civil  authorities)  he  might  disavow  any  re- 
sponsibility 'for  the  ensuing  loss  of  life  and  place 
the  commanding  officer  in  jeopardy. 

CiC).  Orders  and  Reports  in  General.  When 
the  mob  has  been  dispersed  and  property  is  being 
guarded,  special  orders  to  sentries  may  be  issued  in 
the  form  of  standing  orders.  Where  it  is  advisa- 
ble to  make  these  orders  public  they  may  be  given 

75 


ORDERS    AND    REPORTS. 

publicity  in  any  convenient  way.  Many  of  these  or- 
ders necessarily  affect  the  citizens  and  in  such  cases 
they  should  be  made  acquainted  with  the  character 
of  the  orders. 

Civil  officers  at  the  scene  of  disturbance  will  of 
course  be  advised  as  to  the  time  of  arrival  of  troops 
sent  to  their  aid.  Meanwhile  such  civil  officers  may 
be  required  to  report,  to  the  commanding  officer, 
the  progress  of  the  disturbance  and  any  changes  in 
its  character.  Details  of  this  subject  are  mentioned 
in  section  eighty. 

Orders  relating  exclusively  to  the  troops  should 
not  be  embodied  in  orders  which  relate  to  the  con- 
duct of  citizens.  Reniemljer  that  the  former  are  un- 
der military  law,  the  latler  under  ci\il  law  or  mar- 
tial law. 

C)7.  Conflicting  Orders.  In  case  of  a  conflict 
of  orders,  the  commanding  officer  of  troops  ordered 
on  riot  duty  should  refer  the  matter  to  the  governor 
of  his  state.  If  the  governor  decides  the  question, 
the  officer  should  consider  the  decision  final  and  act 
in  accordance  with  it.  (5)  With  reference  to  this 
question,  the  Supreme  Court  of  Pennsylvania  has 
said: 


(5)  Whenever,  in  this  volume,  the  statement  is 
made  that  the  governor  has  supreme  powers,  it  is 
assumed  that  the  situation  is  one  where  state  troops 
are  acting  in  the  service  of  their  own  state. 

7.6 


ORDERS    AND    REPORTS. 

"It  follows,  if  the  governor,  as  supreme  executive, 
and  as  commander-in-chief  of  the  army  of  the  com- 
monwealth, is  charged  with  the  duty  of  suppressing 
domestic  insurrections,  he  must  be  the  judge  of  the 
necessity  requiring  the  exercise  of  the  powers  with 
which  he  is  clothed,  and  his  subordinates,  who  are 
employed  to  render  these  powers  efficient;  and  to 
produce  the  legitimate  results  of  their  exercise,  can 
be  accountable  to  none  but  him."     (6) 

68.  Protection  Afforded  by  Orders.  A  sol- 
dier is  bound  to  obey  the  orders  of  his  superior  of- 
ficer where  such  orders  do  not  clearly  show  their 
own  illegality,  and  such  orders  w^ill  be  a  protection 
to  the  soldier.      (7) 

69.  Interpretation  of  Orders.  A  footnote 
to  a  rule  or  regulation  is  not  less  authoritative  than 
the  principal  text,  where  the  language  of  the  foot- 
note and  the  general  character  of  the  principal  text 
point  to  a  single  authorship,  and  an  intention  that 
the  footnote  shall  command  respect  and  obedience 
in  like  manner  as  the  body  of  the  rule  or  regula- 
tion.     (8) 


(6)  Appeal  of  Hartranft  et  al.,  85   Pa.  St.,  433, 
Ui-o. 

(7)  Commonwealth   v.    Shortall,   55   A.   952.   20G 
Pa.,  165.    And  see  Sec.  67. 

(8)  In  re  Brodie,  128  F.  665,  63  C.  C.  A.,  419; 
In  re  Coffey  Id.,  In  re  Henshew,  Id. ;  In  re  Morris,  Id. 

77 


ORDERS    AND    REPORTS. 


70.  Minors.  A  father  has  no  power  to  exon- 
erate or  withhold  his  son,  over  18  and  within  21 
years  of  age,  from  the  performance  of  miUtia  duty. 
(9) 


(It)     Stevens  v.  Foss,  18  Me.  (6  Shep.),  19. 


78 


CHAPTER  SEVEN. 


CONDUCT  OF  OFFICERS. 


71.  In  Preparation.  The  conduct  of  officers 
ill  preparation  for  riot  duty  has  been  referred  to 
in  section  forty-nine.  It  may  be  further  said  that, 
in  communication  and  conference  with  the  civil  au- 
thorities, it  is  essential  for  officers  to  preserve  good 
humor  and  cheeriness  of  demeanor.  Civil  officers, 
anticipating  trouble,  nearly  always  ask  for  advice 
of  the  guard  officers.  Such  advice  must  be  given 
guardedly.  Whenever  a  guard  officer  is  reasonably 
certain  on  any  proposition  he  may  frankly  give  his 
opinion.  If  he  is  uncertain  he  should,  just  as 
frankly,  say  that  he  don't  know.  Otherwise  the 
civil  officer  may  be  misled  and  a  haphazard  opinion 
may  lead  to  a  serious  mistake.  If  the  mayor  of  a 
city  inquires  about  his  legal  authority  to  take  cer- 
tain measures  he  should  be  referred  to  his  city  so- 
licitor unless  the  guard  officer  is  reasonably  certain 
of  the  proper  answer. 

72.  The  Decision  of  Legal  Questions,  by 
both  military  and  civil  officers  should  be  deliberate. 
Conclusions  should  not  be  jumped  at  hurriedly.  Law 
is  not  a  mathematical  science.     Legal  decisions  are 

79 


CONDUCT    OF    OFFICERS. 

reached  by  the  apphcation  of  legal  principles,  in  a 
logical  way,  to  varying  sets  of  facts.  Invariably, 
the  application  which  a  court  has  made,  to  a  certain 
set  of  facts,  of  the  principles  of  law  governing  such 
facts,  results  in  a  decision  which  has  been  rendered 
deliberately.  This  decision  establishes  a  rule  for 
future  conduct.  But  this  rule  can  be  safely  fol- 
lowed only  under  circumstances  where  the  facts  and 
the  law  are  similar.  It  is  often  the  case,  when  a 
civil  and  military-  officer  are  discussing  the  advisa- 
bility of  calling  troops,  that  neither  they  nor  their 
nearest  advisers  are  familiar  with  the  legal  ques- 
tions presented.  In  such  an  emergency  the  city  so- 
licitor or  county  prosecutor  could  be  called  in  and 
the  constitution  of  the  state,  with  those  few  sec- 
tions of  the  statutes  which  relate  to  riot  duty,  should 
be  consulted.  If  the  guard  officer  has  made  any 
preparatory  study  for  the  duty  he  can  furnish  com- 
plete references  to  these  constitutional  and  statutory 
provisions  and  no  time  will  be  lost  in  finding  them. 
To  these  few  paragraphs  of  written  law,  the  officer 
could  add  any  regulations  or  authorities  he  has  up- 
on the  subject  and  a  proper  start  may  be  made. 

73.  Liability  of  Municipality.  There  arc, 
as  set  forth  in  section  forty,  many  states  where  stat- 
utes require  the  municipality  to  pay  for  property  de- 
stroyed by  mobs.  An  officer  in  such  state,  in  dis- 
cussing a  call  for  troops  with  a  civil  officer,  would 

SO 


CONDUCT    OF    OFFICERS. 

do  well  to  call  the  attention  of  the  civil  officer  to 
such  statute  in  order  to  apprise  him  of  a  responsi- 
bility of  which  he  may  be  ignorant.  No  such  liabil- 
ity exists  except  under  a  statute. 

74.  Conduct  Toward  Civil  Officers.  All 
officers  on  riot  duty,  will  consult  their  own  comfort 
and  interests  best  bv  uniform  consideration  for  all 
civil  officers  who  are  attempting  to  properly  dis- 
charge their  duties.  In  this  connection  matters  of 
some  delicacy  frequently  arise  because  civil  officers, 
with  an  eye  to  maintaining  the  support  of  all  fac- 
tions of  the  community  in  future  political  contests, 
are  prone  to  play  politics.  As  long  as  they  do  so 
without  interference  with  the  proper  discharge  of 
their  official  duties  and  refrain  from  interference 
with  the  official  duties  of  other  civil  and  military 
officers;  the  civil  and  military  officers  may  jointly 
operate  in  bringing  the  tumult  to  a  successful  con- 
clusion. But  if  the  military  officer  permits  a  politi- 
cian to  override  his  judgment,  as  to  what  is  right 
in  dealing  with  a  mob,  he  at  once  gets  onto  thin  ice 
that  may  not  carry  him  over  the  danger  spots.  Not- 
withstanding disputes  that  may  arise,  the  officer 
must  not  forget  the  sixty-first  Article  of  War. 

75.  Conduct  Toward  Troops.  Troops  on  riot 
duty  are  subjected  to  many  necessary  hardships. 
They  usually  spend  all  of  the  first  night  in  traveling, 
fighting  or  guard    duty.     Quarters  for  the  second 

81 


CONDUCT    OF    OFFICERS. 

night  are  not  usually  comfortable.  The  work  is 
exhausting  under  favorable  conditions,  but  the 
strain  is  not  noticed  for  the  first  forty-eight  hours. 
After  that  the  men  begin  to  complain  of  unnecessary 
hardships.  If,  in  the  inception  of  a  disturbance,  the 
staff  departments  of  the  regiment  and  companies 
get  to  work  energetically  and  intelligently  they  can 
do  a  great  deal  toward  alleviating  the  discomforts  of 
their  comrades.  If  the  commissarv,  cooks  and  as- 
sistants  and  the  quartermaster  and  his  staff  are 
started  out  in  their  respective  duties  as  soon  as  pos- 
sible, time  is  gained  in  the  end  for  the  whole  force. 
A  machine  can  not  continue  to  do  thorough  work 
while  some  of  its  parts  are  out  of  adjustment.  Rigid 
discipline  will,  necessarily,  be  constantly  enforced. 

70.  Conduct  Toward  Citizen.s,  by  all  soldiers 
engaged  in  riot  duty,  should  be  uniformly  courteous 
except  where  a  citizen  shows  a  tendency  toward 
affiliating  with  the  mob.  In  almost  every  disturbed 
district  there  are  citizens  who  will  heartily  co-oper- 
ate WMth  the  troops  in  preserving  the  peace.  These 
citizens  are  friends.  If  properly  treated,  they  will 
give  valuable  information  to  officers  and  men  and 
will  aid  the  troops  in  many  ways.  Their  sentiments 
will  gain  favor  with  citizens  who  are  wavering  to- 
ward the  insurrection.  If  the  latter  are  properly 
encouraged  public  sentiment  itself  will  soon  make 
for  the  restoration  of  order. 

83 


CONDUCT    OF    OFFICERS. 

Private  property  must  be  invariably  respected  and 
protected  where  necessary  and  possible. 

77.  Conduct  Toward  the  Mob  varies  greatly 
with  the  character  of  the  tumult.  It  may  be  neces- 
sary to  act  with  extreme  firmness  and,  in  some 
cases,  harshness.  If  an  insurrection  comprises  the 
entire  community  it  is  necessary  to  resort  to  some 
of  the  individual  members  to  aid  in  obtaining  infor- 
mation. Under  such  circumstances  it  may  be  as- 
sumed that  the  persons  inquired  of  will  lie.  Under 
these  conditions  the  following  plan  has  been  used 
with  considerable  success.  Catch  lour  or  five  of  the 
apparent  leaders  of  the  mob  and  separate  and  isolate 
these  men  by  confining  them  in  non-communicating 
cells  of  the  city  prison  or  county  jail.  Make  out  a 
list  of  questions  covering  the  information  wanted, 
one  question  to  a  page.  Bring  out  each  man  sep- 
arately and  get  his  answers  to  these  questions  with- 
out his  having  had  any  chance  to  communicate  with 
the  other  captives.  It  is  wonderful  what  a  difterence 
there  will  be  in  the  answers.  Each  man  knows  the 
truth,  but  each  man  tells  a  different  "lie  in  order  to 
conceal  it.  Then  proceed  to  administer  punishment 
for  the  lies  told.  Confront  each  man  with  the  indis- 
putable evidence  of  his  falsehoods.  Then  ask  the 
same  questions  over  again.  The  answers  will  again 
vary,  but  some  of  the  men  will  have  weakened  and 
told  the  truth  in  some  instances.     Some  of  the  an- 

83 


CONDUCT    OF    OFFICERS. 

swers  to  the  various  questions  will  be  found  to  cor- 
roborate others  and  thus  the  true  answer  may  be 
deduced.  If  not  proceed  as  before.  Punishment 
and  re-examination  and  the  truth  will  eventually 
come  out.  During  this  procedure  the  captives  should 
not  be  given  the  slightest  chance  to  communicat'^ 
with  one  another. 

78.  Qualified  Martial  Law.  It  has  been 
well  said  by  some  of  the  best  courts  of  this  country 
that  the  moment  troops  in  the  field  are  ordered  by 
the  governor  to  perform  any  service  independenth 
of  civil  authorities,  or  to  control  civil  affairs,  a  state 
of  at  least  qualified  martial  law^  exists.  Military  and 
civil  officers,  when  troops  are  so  acting,  should  ami- 
cably agree  as  to  what  degree  of  martial  law  is  to 
he  exercised.  In  case  of  a  dispute,  consult  the  gov- 
ernor. This  subject  is  discussed  in  chapter  seven- 
teen. 

79.  Personal  Conduct.  As  heretofore  stated 
no  officer,  on  duty  during  riot,  especially  during  the 
first  stage,  should  either  take  a  drink,  or  enter  a 
saloon.  The  weather  may  be  such  as  to  render  a 
stimulant  beneficial,  the  exhausted  condition  of  the 
officer  may  demand  a  quick  recuperative,  but  the 
consequences  of  taking:  "One  little  drink"  or  even 
entering  a  saloon  have  been,  under  such  circum- 
stances, extremely  grave.  Once  upon  a  time  a  col- 
onel of  the  national  guard  walked  quietly  into  a  sa- 

84 


CONDUCT    OF    OFFICERS. 

loon  and  took  a  drink.  He  really  needed  it  as  he 
had  been  on  his  feet  for  practically  twenty-four 
hours.  Unfortunately,  within  two  hours,  a  mob 
charged  the  court  house  which  was  being  guarded 
by  this  officer's  regiment.  After  repeated  warnings, 
he  gave  the  command  to  fire,  and  several  of  the  mob 
were  killed  and  wounded.  This  commanding  officer 
was  afterwards  indicted  by  the  grand  jury  which 
next  sat  in  that  court  house,  for  manslaughter.  The 
defendant,  thus  indicted,  was  compelled  to  employ 
the  best  legal  talent  available,  secure  a  change  of 
venue  to  an  adjoining  county  and  sit  six  weeks  as 
defendant  in  the  trial  of  a  murder  case.  During  the 
production  of  the  testimony  it  developed  that  the 
friends  of  those  who  had  been  killed  and  wounded 
in  the  court  house  fight  had  persistently  circulated 
the  story  that  the  officer  who  gave  the  command  to 
fire  was  drunk  at  the  time.  The  defense  of  this 
case  was  so  expensive  as  to  nearly  ruin  the  officer 
in  spite  of  the  fact  that  the  state  afterwards  reim- 
bursed him  in  the  sum  of  about  twenty-five  hundred 
dollars.  Meanw'hile,  damage  suits  w4th  claims  ag- 
gregating seventy  or  eighty  thousand  dollars  were 
prepared  by  the  friends  of  those  killed  and  injured 
in  the  riot.  In  all  of  these  suits  the  same  command- 
ing officer  would  have  been  defendant  had  he  not 
gone  to  considerable  trouble  to  escape  service  and 
otherwise  avoid  having  the  cases  tried  in  the  county 

85 


CONDUCT    OF    OFFICERS. 

where  the  troops  had  operated.  Thus  the  fact  that 
til  is  officer  was  seen  to  pubHcly  take  one  drink  in  a 
saloon  was  seized  upon  by  a  score  or  more  of  mali- 
cious persons  and,  as  the  story  Avas  bruted  about, 
the  one  drink  increased  in  number  like  the  three 
black  cats.  An  infinite  amount  of  trouble  was 
caused  an  unfortunate  commander  who  had,  in  fact, 
conducted  himself  throughout  the  ri(jt  with  perfect 
propriety  and  bravery.  1'his  is  not  a  fable.  The 
story  is  true  in  every  detail. 


86 


CHAPTER  EIGHT. 


MOVEMENT  OF  TROOPS. 


80.  Scouts.  The  commanding  officer  moving 
troops  to  the  scene  of  a  riot  ought  to  know  in  ad- 
vance just  what  conditions  he  will  encounter.  In 
order  to  obtain  this  information  he  may  detail  trust- 
worthy enlisted  men  to  proceed  to  the  scene  of  dis- 
turbance in  advance  of  the  troops.  These  men  go, 
almost  invariably,  in  civilian  dress.  After  their  first 
report  it  is  sometimes  advisable  U)  continue  to  em- 
ploy them  in  civilian  dress.  Certain  citizens  may 
also  be  permitted  to  affiliate  with  the  mob.  To  re- 
duce the  risk  they  must  have  secret  means  of  com- 
munication with  the  commanding  officer.  There 
are  many  ways  of  quietly  securing  information, 
which  may  be  devised  by  a  little  study ;  but  it  is 
not  advisable  to  publish  them.  By  using  these 
means  proof  may  be  secured  against  certain  turbu- 
lent men  which  can  afterwards  be  used  to  ad\antage 
by  the  proper  authorities. 

81.  Civil  Authorities  Should  Meet  Troops. 
In  cases  where  troops  are  called  to  their  aid.  the 
civil  officer  who  is  to  have  the  general  direction  of 
the    troops    should,    by    preconcerted    arrangement, 

87 


MOVEMENT    OF    TROOPS. 

meet  them  at  some  point  near  the  disturbance.  This 
meeting  point  should  possess  some  tactical  advant- 
age. It  ought  to  be  near  enough  to  the  disturbance 
to  enable  the  troops  to  act  promptly.  It  should  not 
be  so  close  to  a  mob  that  a  conflict  might  occur  be- 
fore the  civil  oflicer  and  the  military  officer  have 
time  to  concert  a  plan  of  action.  It  is  advantageous 
to  come  upon  the  mob  with  troops  fully  prepared 
for  all  ordinary  emergencies  and  these  preparations 
cannot  safely  be  made  in  full  view  of  the  mob. 

82.  Detraining,  in  the  immediate  presence  of 
a  mob  has,  on  some  occasions  in  the  past,  resulted 
in  the  complete  dispersal  of  the  militia.  On  one  oc- 
casion in  Ohio,  a  disturbance  in  a  mining  district 
occasioned  a  call  for  troops.  The  disturbance  was  in 
a  small  mining  town,  located  in  a  narrow  valley 
in  the  midst  of  which  stood  the  railway  station. 
Shortly  after  the  call  a  train  drew  up  at  this  sta- 
tion with  one  company  of  infantry  on  board.  The 
train  was  surrounded  by  the  mob.  The  men  began 
to  emerge  one  by  one  from  the  passenger  coaches. 
They  were  received  and  disarmed  one  by  one  by  the 
mob.  Some  of  them  were  told  to  go  home.  Others 
were  more  roughly  treated.  It  is  unnecessary  to 
state  the  moral  effect  that  this  victory  had  on  the 
mob. 

Unless  a  commanding  officer  wishes  to  run  the 
risk  of  a  similar  experience,  he  must,  when  neces- 

88 


MO^■EME^*T    OF    TROOPS. 

sary,  take  command  of  the  train  upon  which  his 
troops  are  transported.  This  train  is  in  state  serv- 
ice and  the  mihtary  officer  may  give  any  necessary 
orders  to  the  railwa}'  crew  ;  but  the  commanding 
officer  must  give  these  orders  at  the  proper  time. 
He  must  remember  that  trains  are  controlled  li} 
block  signals  and  train  dispatchers  and  he  must  nni 
so  interfere  with  the  running  of  the  train  as  to  en- 
danger the  lives  of  his  men  or  of  railway  employes 
or  passengers  on  other  trains. 

83.  Discipline  Enroute.  As  the  officers  and 
men  are  on  a  delicate  mission,  their  conduct,  enroute 
to  the  scene  of  disturbance,  will  have  a  material  ef- 
fect upon  the  public  sentiment  for  or  against  them. 
It  is  to  be  hoped  that  the  old  days  of  robbing  pic 
counters  are  over  without  exception.  In  the  mind 
of  the  old  time  militiaman  there  may  have  been  some 
idea  of  justice  in  taking  refreshments  or  necessaries 
without  paying  therefor.  He  was  sent  out  upon  a 
public  duty  often  without  any  chance  of  pay  for 
many  months  to  come,  frequently  without  a  cent  in 
his  pocket  and  commonly  without  any  staff  officer 
to  furnish  to  him  the  necessary  subsistence.  L'nder 
such  conditions  the  militiaman  often  gained  public 
condemnation  by  what  seemed  to  him  a  necessary 
foraging  trip.  The  militiaman  was  wrong,  in  fact 
he  was  a  thief,  but  the  government  who  placed  him 

89 


MOVEMENT    OF    TROOPS. 

in  such  a  predicament  was  equally  censurable  from 
a  moral  point  of  view. 

Such  acts  of  vandalism  must  never  be  permitted. 
If  certain  men  of  any  regiment  take  or  destroy  prop- 
erty unlawfully,  the  names  of  the  offenders  should 
be  immediately  ascertained  and  these  men  required 
to  make  full  reparation.  This  can  be  done  by  as- 
signing their  pay  accounts  to  the  injured  persons 
and  having  the  company  commander  accept  the  or- 
der. 

Some  instances  may  arise  where  property  is 
taken,  injured  or  destroyed  by  members  of  a  cer- 
tain company  and  the  names  of  these  men  cannot 
be  ascertained  because  neither  men  nor  officers  of 
the  organization  use  proper  means  to  secure  their 
divulgence.  In  such  a  case  the  commanding  officer 
will  deduct  from  the  pay  of  the  entire  organization 
a  sum  sufficient  to  defray  the  damages  these  men 
have  occasioned,  to  the  persons  injured.  Such  ac- 
tion by  the  commanding  officer  is  in  the  interest  of 
justice,  tends  to  promote  respect  for  the  national 
guard  and  is  fully  authorized  by  the  fifty-fourth 
Article  of  \\^ar.  Furthermore,  men  who  have  been 
required  to  make  such  payments  have  received  very 
healthful  lessons  which  will  promote  a  better  state 
of  discipline  in  the  future. 

84.  Marches  are  often  required  to  reach  the 
point  of  disturbance.     These  marches  may  be  made 

90 


MOVEMENT    OF    TROOPS. 

through  vvhiit  could  hardly  be  classed  as  enemy 
country;  but  nevertheless  through  country  where 
the  inhabitants  may  be  secretly  hostile.  Under  such 
circumstances  it  may  be  assumed  that  news  of  the 
character  and  strength  of  the  command  is  preceding 
it.  As  it  is  important  that  this  news  should  create 
the  impression  desired  by  the  commanding  officer, 
he  has  certain  means  at  his  disposel  to  effect  this 
end.  He  is  justified  in  sending  forth  false  informa- 
tion, where  necessary,  and  in  concealing  the  strength 
of  his  command;  misrepresenting  the  line  of  march 
and  also  the  time  of  the  march. 

85.  Transportation  will  be  suited  mure  to  the 
emergency  of  the  occasion  than  to  the  comfort  of 
the  troops.  The  commanding  officers,  personally  or 
through  members  of  their  staffs,  will  make  their 
contracts  or  seize  the  necessary  transportation  ac- 
cording to  the  need  for  haste.  A  freight  engine  and 
gravel  train  has  heretofore  been  used  when  better 
rolling  stock  could  not  be  obtained.  Before  seizing 
transportation,  when  it  seems  necessary  to  do  so,  the 
officer  ought  to  be  assured  of  the  gravity  of  the  sit- 
uation and  the  urgency  of  the  oc  asion.  An  order 
from  the  governor  should  be  secured  except  in  ex- 
tremely rare  instances. 

The  best  available  means  of  transportation  is  th;jt 
which  fills  the  speed  requirement.  For  distances 
under  thirtv  miles,  interurban  cars  are  successfullv 

91 


MOVEMENT    OF    TROOPS. 

used  for  small  bodies  of  infantry.  When  transport- 
ing machine  guns,  the  crews  should  not  be  separated 
from  the  guns  except  un  long  journeys.  The  same 
recommendation  may  be  made  as  to  artillery, 

86.  Separate  Units.  It  is  assumed  that  the 
commanding  officer  is  thoroughly  familiar  with  the 
transportation  facilities  of  his  various  stations  and 
that  he  will  not  use  one  means  where  another  is 
speedier.  A  regimental  commander,  receiving  or- 
ders to  proceed  with  his  regiment  to  a  certain  point, 
may  send  certain  companies  in  advance  under  proper 
conditions.  For  instance :  a  colonel  has  twelve 
companies  stationed  in  twelve  villages.  A  disturb- 
ance occurs  ten  miles  from  the  station  of  Company 
E.  If  the  mayor  at  the  disturbed  district  can  use 
ojie  company  effectively,  it  may  be  ordered  to  report 
to  the  mayor  near  the  scene  of  disturbance,  without 
waiting  for  the  mobilization  of  the  entire  regiment ; 
but  if  two  companies  can  be  sent  as  readily  as  one 
such  course  should  be  adopted.  In  ordering  troops 
forward  in  this  way  there  is  sometimes  danger  of 
precipitating  a  conflict  and  this  danger,  if  apparent, 
ought  to  be  avoided.  It  must  also  be  borne  in  mind 
that  the  first  troops  to  reach  the  scene  of  disturb- 
ance should  be  in  command  of  an  officer  of  expe- 
rience. Under  some  circumstances  a  field  officer 
may  be  detailed. 

9^ 


MOVEMENT    OF    TROOPS. 

87.  Travel  Rations  will  be  prepared  if  the 
commissary  department  has  the  necessary  time  at 
its  disposal.  Even  where  the  distance  to  the  post 
of  duty  is  short  the  travel  ration  will  be  appreciated 
by  the  men.  In  the  hurry  of  preparation  they  usu- 
ally neglect  to  eat.  During  a  railway  journey  the 
men  want  rest  and  the  food  which  they  may  not 
be  able  to  get  for  some  time  after  arrival  at  the  scene 
of  trouble.  If  the  cooks  carry  their  large  coffee 
cans  some  embarrassment  may  be  avoided  by  wiring 
to  certain  stations  to  have  a  certain  number  of  gal- 
lons of  hot  coffee  ready  on  arrival.  It  will  then  be 
taken  on  board  in  company  utensils  without  any  de- 
lay. Remember  that  fighting  on  an  empty  stomach 
is  bad  for  the  nerves. 

88.  Baggage.  Some  militia  organizations  go 
into  camp  with  packing  boxes  that  are  utterly  be- 
yond reason  both  as  to  size  and  weight.  The  U.  S. 
Manual  for  Quartermasters  Department  (1904) 
provides  that  packing  boxes  should  be  of  dimensions 
as  follows: 

1.  For  escort  wagon  transportation,  38  inches 
by  19  inches  by  15  inches  (outside  measurements). 

2.  For  escort  wagon  and  pack  transportation, 
30  inches  by  19  inches  by  15  inches  (outside  meas- 
urements). That  these  boxes  should  be  constructed 
of  one-inch  pine  lumber,  dressed  on  one  side  and  to 
be  bound  properly  with  hoop  iron.     That  sacking 

93 


MOVEMENT    OF    TROOPS. 

or  baling  should  be  substituted  wherever  practica- 
ble. That  all  supplies  intended  for  field  service, 
when  practicable,  should  be  packed  in  boxes  of  the 
dimensions  given  above;  weight  not  to  exceed  150 
pounds  gross. 

The  reasons  for  these  regulations  are  too  obvious 
to  require  recital. 

89.  U.  S.  Service.  When  called  out  by  the 
president,  militia  will  usually  have  time  to  mobilize 
by  regiments  and  complete  camp  equipage  will 
probably  be  carried.  The  U.  S.  Quartermaster's 
Manual  and  U.  S.  Manual  for  the  Subsistence  De- 
partment will  furnish  the  rules  for  the  regimental 
staff  officers.  Blank  forms  for  securing  subsistence 
and  transportation  may  be  procured,  in  advance,  by 
correspondence  with  the  stafY  officers  of  the  U.  S. 
military  department  in  which  the  troops  are  sta- 
tioned. This  correspondence,  under  the  usual 
rules,  would  go  through  the  office  of  the  state  adju- 
tant general. 


94 


CHAPTER  NINE. 


AID  OF  CIVIL  Al   THORITIES. 


90.  Liability  to  Arrest  While  Performing 
MiLiT.ARY  Service.  During  the  time  troops  are  in 
service,  suppressing  a  tumult,  riot,  or  insurrection, 
officers  and  enlisted  men  cannot  be  arrested  or  com- 
pelled to  answer  process  of  the  civil  courts  because 
of  any  act  done  on  such  service.  This  immunity 
extends  to  the  officers  and  men  on  such  sei^vice  so 
long  as  it  is  necessary  for  the  military  to  remain 
in  the  field  for  the  purpose  of  enforcing  the  con- 
stitution and  laws.  During  the  time  of  the  service, 
the  members  of  the  military  organization  cannot  be 
called  to  account  by  the  civil  authorities.  If  they 
could  be  compelled  to  answer  to  the  courts  after 
they  had  been  in  the  field  ten  days,  or  thirty  days, 
they  might  be  compelled  to  appear  in  the  courts  on 
the  first  day.  Such  requirement  is  absolutely  in- 
consistent with  the  performance  of  military  duty 
in  active  service. 

91.  Exception  to  Foregoing  Rule.  An  ex- 
ception to  the  foregoing  rule  may  arise  under  con- 
ditions indicated  hereafter  in  section  two  hundred 
and  twenty.     It  will  be  there  shown  that  where  a 

95 


AID    OF    Civil-    AUTHORITIES. 

leader  of  a  riot  or  mob,  or  a  member  thereof,  is  held 
by  militaiT  authorities  and  a  writ  of  habeas  corpus 
has  been  sued  out,  whereby  a  court  requires  the 
military  officer  to  produce  the  body  of  such  captive; 
it  is  the  duly  of  such  officer  to  answer  to  the  writ 
and  state  the  facts  that  caused  the  confinement,  and 
to  produce  the  prisoner,  so  that  the  court  may  make 
proper  orders  in  the  matter. 

The  writ  of  habeas  corpus  is  not  suspended  while 
troops  are  acting  under  general  orders  of  the  minor 
civil  authorities. 

92.  Another  Exception.  The  fifty-ninth  Ar- 
ticle of  War  provides  that  when  any  officer  or  sol- 
dier is  accused  of  a  capital  crime,  or  of  any  offense 
against  the  person  and  property  of  any  citizen  in 
the  United  States,  which  is  punishable  by  the  laws 
of  the  land,  the  commanding  officer  of  the  organiza- 
tion to  which  the  person  so  accused  belongs,  is  re- 
quired, excepting  in  time  of  war,  upon  application 
by  or  in  behalf  of  the  party  injured,  to  deliver  the 
accused  to  the  civil  magistrates  for  trial.  This 
United  States  stautory  provision,  in  states  where  the 
articles  of  war  are  held  to  apply  to  the  militia  in 
state  service,  must  be  followed  except  in  time  of 
war.  A  state  of  war  does  not  exist  while  troops  are 
acting  strictly  in  aid  of  civil  authorities.  Therefore, 
when  an  officer's  command  is  so  acting  and  a  mem- 
ber   of    the   command,    acting    wholly    outside   the 

96 


AID   OF    CIVIL    AUTHORITIES. 

scope  of  his  military  duties,  commits  an  offense 
mentioned  in  the  above  article  of  war,  he  may  be 
turned  over  to  the  civil  authorities  for  confinement 
and  trial.  In  such  case  the  succeeding  morning  re- 
port of  the  offender's  company  will  indicate  that 
he  is  in  the  hands  of  the  civil  authorities  accused  of 
a  certain  offense.  But  the  commanding  officer  must 
not  turn  the  man  over  to  the  civil  authorities  until, 
after  proper  application  received,  he  has  made  a 
full  investigation  of  the  matter  and  is  convinced  that 
the  application  is  made  in  good  faith  and  in  the 
interests  of  law  and  justice.  The  commanding  offi- 
cer may  require  such  an  application  to  be  sworn  to 
and  to  be  full  and  explicit.  The  application,  or 
accompanying  evidence,  must  identify  the  accused 
to  the  satisfaction  of  the  officer  receiving  the  appli- 
cation.    (1) 

93.  When  Accountability  to  Civil  Au- 
thorities Begins.  After  conclusion  of  the  tour 
of  duty,  however,  officers  and  men  may  be  com- 
pelled to  account  to  the  courts  for  their  actions. 
This  accounting  is  limited  to  an  inquiry  into  acts 
in  which  the  troops  appear  to  have  exceeded  their 
authority.  If  the  inquiry  demonstrates  that  the 
action  was  taken  in  pursuance  of  constitutional 
authority  and  that  the  act  or  acts  were  not  malicious- 


(1)     Dig.  Opin.  J.  A.  G..  par.  95. 

07 


AID    OF    CIVIL    AUTHORITIES. 

ly  or  unreasonably  done,  the  action  is  shown  to  have 
been  justified. 

94.  Authority  of  Military  Officers.  The 
enforcement  of  law  by  the  military  arm  of  the  gov- 
ernment is  necessarily  arbitrary  and  harsh,  but  it 
is  the  only  means  when  civil  authorities  have  failed. 
When  civil  authorities  have  called  out  the  military, 
and  the  military  are  acting  in  their  aid,  neither  civil 
nor  military  officers  can  create  new  offenses,  or  new 
penaltes  for  old  offenses.  The  lawlessness  required 
to  be  suppres.'^ed  is  the  violation  of  existing  statutes. 
Therefore  it  is  the  duty  of  the  civil  authorities,  from 
the  governor  down,  to  direct  the  military  officers 
by  pointing  out  in  general  terms  what  duties  the 
military  arm  shall  perform.  And  so  long  as  the 
military  act  in  aid  of  the  civil  authorities,  the  mili- 
tary arm  is,  for  practical  purposes,  acting  as  an 
armed  police.  It  is  the  duty  which  the  police  is 
unable  to  perform,  but  would  have  performed,  if 
able  to  do  so.  The  details  of  this  power,  and  its 
limitations,  will  be  indicated  in  the  succeeding  sec- 
tions. 

There  is  a  dearth  of  judicial  decisions  on  the 
question  as  to  how  far  the  civil  authorities  control 
a  military  officer  while  the  military  is  acting  in  the 
aid  of  civil  power.  The  reason  for  this  paucity  of 
judicial  precedents  is  complimentary  to  both  civil 
and  military  officers.    The  scarcity  of  court  opinions 

98 


AID   OF    CIVIL    AUTHORITIES. 

on  the  point  shows  that  comparatively  few  conflicts 
of  authority  have  occurred.  It  indicates  that  the 
civil  authorities  have,  as  a  rule,  appreciated  the  aid 
they  receive  from  the  military  and  the  relations  be- 
tween the  two  powers  have  continued  to  be  friendly, 
throughout  and  succeeding  governmental  troubles. 
From  the  few  existing  decisions  it  is  difficult  to 
formulate  detailed  rules  as  to  how  far  a  military 
officer  may  go  in  suppressing  a  tumult  while  the 
civil  authorities  are  nominally  in  control  and  have 
sought,  not  the  intervention  of  the  military  power, 
but  the  aid  of  the  military  power.  In  determining 
the  full  scope  of  a  militiaman's  duties  and  authority 
under  this  situation,  recourse  must  be  had  to  general 
rules  of  law  and  to  the  constitutional  rights  of  the 
civil  officers  themselves;  namely,  the  right  of  self- 
defense,  the  right  that  a  civil  officer  has  to  take  life 
under  certain  circumstances  and  to  make  arrests 
without  warrants  from  a  magistrate. 

95.  Act  Under  Order  of  Civil  Authority. 
But  the  military  must  not  exercise  the  powers  of 
policemen,  or  of  a  sheriff's  posse,  without  orders 
from  the  civil  authorities.  In  a  insi  prius  court, 
where  this  point  was  raised,  it  was  decided  that : 

"Military  authorities  cannot  exercise 
the  functions  of  civil  power,  nor  super- 
sede or  take  its  place.  As  an  independent 
force,   such   authorities   cannot   undertake 

99 


AID   OF    CIVIL    AUTHORITIES. 

to  execute  or  enforce  observance  of  civil 
laws,  nor  can  they  undertake  preservation 
of  public  peace,  the  dispersion  of  unlawful 
assemblies  or  the  prevention  of  riots,  ex- 
cept under  the  orders  of  the  civil  authori- 
ties, and  in  aid  thereof." 

"Military  officers  called  to  aid  authori- 
ties have  no  power  to  act  independently  of 
civil  authority,  or  to  usurp  its  functions  or 
take  its  place.  They  are  to  act  simply  as 
armed  police,  subject  to  the  absolute  and 
exclusive  control  of  magistrates  and  other 
civil  authorities."     (2) 

96.  Self-Defense.  Homicide  is  justifiable  on 
the  ground  of  self-defense,  where  the  slayer,  in  the 
careful  and  proper  use  of  his  faculties,  bona  fide 
believes,  and  has  reasonable  ground  to  believe,  that 
he  is  in  imminent  danger  of  death  or  great  bodily 
harm,  and  that  his  only  means  of  escape  from  such 
danger  will  be  by  taking  the  life  of  his  assailant, 
although  in  fact  he  is  mistaken  as  to  the  existence 
or  imminence  of  the  danger.     (3) 

On  the  trial  of  one  charged  with  homicide,  where 
the  defense  is  that  the  killing  was  done  in  resisting 
an  attack  from  a  mob,  the  cries  of  the  mob  from 
the  time  it  formed,  though  made  before  the  deceased 


(2)     State  V.  Coit,  8  Ohio  Dec,  62. 
(.3)     Marts  v.  State.  26  O.  S.,  162. 

100 


AID   OF    CIVIL    AUTHORITIES. 

joined  it,  are  competent  evidence  to  prove  its  spirit 
and  purposes,  and  as  reflecting  upon  its  attitude  at 
the  time  the  alleged  attack  was  made.  (4) 

The  two  rules  just  recited  were  laid  down  by  the 
Supreme  Court  of  Ohio  in  cases  where  private  citi- 
zens were  on  trial.  They  would  doubtless  have 
greater  force  if  the  accused  was  a  militiaman  who 
was,  at  the  time  of  taking  life,  acting  in  the  line  of 
duty,  even  where  his  orders  did  not  protect  him. 
These  principles  would  apply  to  a  body  of  troops 
as  well  as  to  an  individual. 

97.  Ministerial  Duties.  Military  officers  aid- 
ing civil  authorities  perform  ministerial  duties  only. 
The  sheriff,  mayor,  or  governor  who  calls  out  the 
troops,  performs  a  judicial  duty  in  doing  so.  This 
judicial  power  is  conferred  upon  these  civil  officers 
by  the  state  constitution  and  statutes.  As  soon  as 
one  or  more  of  these  civil  officers  have  detennined 
the  necessity  for  calling  troops,  then  their  minis- 
terial duties  under  such  call  require  them  to  direct 
the  troops.  Their  judicial  powers  are  functus  officii. 
Officers  below  the  governor  have  no  discretion  as 
to  means  that  may  be  pursued,  but  after  the  troops 
are  in  the  field  the  civil  authorities  are  guided  bv 
the  same  general  rules  of  law  under  which  thev 
directed  their  civil  forces.  The  military  officers  are, 
under  these  circumstances,  ministerial  officers  also. 


(4)     Coins  V.  The  State,  46  O.  St.,  457. 

101 


AID    OF    CIVIL    AUTHORITIES. 

and  their  duties  then  require  them  to  enforce  the 
laws  under  the  direction  of  the  civil  officers.  Both 
military  and  civil  officers  are  bound  to  use  only  such 
force  as  is  reasonably  necessary  and  proper  under 
the  circumstances  to  execute  the  duty  in  hand.  (5) 
In  other  words,  while  acting  strictly  in  aid  of  civil 
authorities,  the  military  officers  have  only  the  same 
powers  that  these  civil  authorities  have,  and  they 
only  have  these  powers  when  the  civil  officer  directs 
their  exercise  by  the  military. 

98.  Felonies  and  Misdemeanors.  In  deter- 
mining the  duties  of  civil  authorities,  in  making- 
arrests,  it  is  often  necessary  to  know  whether  a  cer- 
tain act  is  a  felony  or  misdemeanor.  On  this  ques- 
tion, under  the  common  law  from  which  ours  is 
derived,  depended,  in  olden  times,  either  a  defend- 
ant's life  or  lands.  For  the  word  felony  then  meant 
either  a  capital  crime  or  an  act  by  which  a  vassal 
lost  or  forfeited  his  fee.  (6)  As  a  general  rule. 
all  crimes  not  amounting  to  felonies  are  still  called 


(5)  State  V.  Coit.  8  Ohio  Dec,  62-65;  Com.  v. 
Shortall,  206  Pa.  St.,  165. 

(6)  12  Cyc,  132.  4  Bl.  Comm.,  94  et  seq.  And 
see  Bouvier  L.  Diet. ;  Burrill  L.  Diet. ;  Coke  Litt., 
391 ;  1  Hawkins  P.  C.  C,  37 ;  1  Russell  Crimes,  42 ; 
Adams  v.  Barrett,  5  Ga.,  404 ;  Com.  v.  Schall,  12  Pa. 
Co.  Ct.,  554;  State  v.  Murphy,  IT  R.  I.,  ^i)^,  24  Atl. 
4?3.  16  L.  R.  A.,  ooO. 

102 


AID   OF    CIVIL    AUTHORITIES. 

misdemeanors.  (7)  It  is  recorded  that  at  one  time 
seventy-two  felonies  were  punishable  by  the  death 
of  the  defendant  convicted  therefor.  The  progress 
of  education  has  mitigated  nearly  all  of  these  pen- 
alties. Forfeiture  has  been  abolished  and  the  death 
penalty  only  occasionally  administered.  The  word 
felony  has  been  retained  with  a  gradually  changing 
meaning.  It  is  now  generally  employed  to  designate 
those  offenses  which  are  punishable  by  imprison- 
ment in  a  penitentiary  or  state's  prison.  (8)  Where 
a  jail  sentence  only  is  imposed;  yet  if  the  court 
could  have  imposed  a  penitentiary  sentence,  still  the 
crime  is  a  felony.     (9) 

A  general  rule  for  distinguishing  between  felonies 
and  misdemeanors  may  be  evolved  from  the  fact 
that  nearly  all  citizens  know  what  crimes  are  pun- 
ishable by  imprisonment  in  a  penitentiary  or  state's 
prison.     Such  crimes  may  usually  be  called  felonies. 


(7)  See  4  Bl.  Comm.  1,  o;  Adams  v.  Barrett,  5 
Ga.,  404,  411;  Com.  v.  Callaghan,  2  Va.  Cas.,  460; 
State  V.  Grove,  77  Wis.,  448. 

(8)  This  is  the  rule  in  Alabama,  Arkansas,  Cali- 
fornia, Georgia,  Illinois,  Indiana.  Kansas,  Kentucky, 
Louisiana,  Massachusetts,  Michigan,  Missouri,  New 
York,  North  Carolina,  Ohio,  Rhode  Island,  Tennes- 
see, Texas,  Vermont,  West  Virginia,  Virginia,  and  in 
the  United  States  courts. 

(9)  People  v.  Hughes,  137  N.  Y.  29,  32  N.  E., 
1105;  Benton  v.  Com.  89  Va.,  570,  16  S.  E.,  725. 

103 


AID    OF    CIVIL    AUTHORITIES. 

Crimes  which  are  not  so  punished  may  generally  be 
termed  misdemeanors. 

99.  Peace-Officers.  At  common  law  peace- 
officers  were  authorized  to  arrest  in  certain  cases 
without  warrants.  As  a  general  rule  justices  of  the 
peace,  sheriffs,  coroners,  constables  and  watchmen 
and  all  who  come  to  their  aid  and  assistance,  in- 
cluding deputies,  are  peace-officers.  (10)  In  many 
states  other  peace-officers  have  been  created  by  stat- 
ute. United  States'  marshals  and  their  deputies 
may  act  as  peace-officers  under  the  laws  of  the  state 
in  which  they  act.  (11)  Police  officers  in  cities 
are  nearly  always  clothed  with  the  same  powers, 
as  peace-officers,  as  are  the  state  officers.  Railway 
policemen,  under  general  laws,  are  also  peace-offi- 
cers, as  a  rule. 

100.  Arrest  for  Felony  or  Attempted  Fel- 
ony. It  is  a  general  rule  throughout  the  United 
States  that  a  peace-officer  may  arrest,  without  a 
warrant,  the  following  persons  : 

a.  One  whom  he  finds  attempting  to  commit  a 
felony.    (12) 

b.  One  who  commits  a  felony  within  view  of 


(10)  4  Bl.  Comm..  292;  2  Hale  P.  C,  85,  86. 

(11)  U.  S.  Revised  Statutes,  (1872),  Sec.  788. 

(12)  3  Cyc,  878;  U.   S.  v.   Fuellhart,   106   Fed., 
911  ;  McMahon  v.  People,  189  Tils.,  222,  59  N.  E.,  584. 


104 


AID   OF    CIVIL    AUTHORITIES, 

the  officer.  This  arrest  may  be  made  after  the  time 
of  committing  the  crime.     (13) 

c.  One  whom  he  has  reasonable  or  probable 
grounds  to  suspect  of  having  committed  a  felony, 
even  though  the  person  suspected  is  innocent.  (14) 

101.  Force  Properly  Used  Therefor.  In 
making"  an  arrest  it  is  the  duty  of  the  arresting  offi- 
cer to  summon  sufficient  assistance  to  enable  him 
to  effect  his  purpose.  (15)  An  officer  has  no  right 
to  break  an  outer  door  or  window  of  a  residence  for 
the  purpose  of  entering  and  arresting  under  civil 
process  when  the  person  to  be  arrested  is  a  lawful 
occupant  of  the  house.  If  the  person  to  be  arrested 
has  no  legal  domicile  in  the  house  where  he  is  con- 
cealed, an  outer  door  or  window  mav  be  broken  to 
gain  admission.  (16)  But  after  having  gained 
entrance  at  the  outer  door  of  a  house  an  officer  mav 


(13)  3  Cyc,  878;  Firestone  v.  Rice,  71  Mich., 
377,  38  N.  W.,  885,  15  Am.  St.  Rep.,  266;  Willis  v. 
Warren,  1  Hilt.  (N.  Y.)  590;  Corbett  v.  Sullivan,  51 
Vt.,  619 ;  Muscoe  v.  Com.,  86  Va.,  443 ;  Kurtz  v.  Mof- 
fitt,   115  U.   S.,  487. 

(14)  3  Cyc,  879;  Williams  v.  State,  44  Ala.,  41; 
Doering  v.  State,  49  Ind.  56,  19  Am.  Rep.,  669 ;  Filer 
v.  Smith,  96  Mich.,  347;  Diers  v.  Mallon,  46  Nebr., 
121 ;  Burns  v.  Erben,  40  N.  Y.,  463 ;  State  v.  West, 
3   O.   St.,   509. 

(15)  Comfort  v.  Com.,  5  Whart.  (Pa.),  437. 

(16)  Oystead  v.  Shed,  13  Mass.,  520;  Gordon  v. 
Clifford,  28  N.  H.,  402. 

105 


AID    OF    CINIL    AUTHORITIES. 

break  inner  doors  to  make  an  arrest  even  though  the 
person  he  seeks  is  not  within.  Before  breaking  these 
inner  doors,  the  officer  should  first  state  his  pur- 
pose and  be  refused  admission.  (17) 

As  a  general  rule,  an  officer  or  a  private  person, 
when  he  is  authorized  to  make  an  arrest,  may  law- 
fully use  the  necessary  force  to  effect  the  arrest,  to 
maintain  the  arrest  and  to  prevent  an  escape;  but  he 
will  be  deemed  guilty  of  an  offense  if,  in  doing 
either,  he  uses  more  than  necessary  force.  Peace- 
officers  are  not  justified  in  using  deadly  weapons  on 
a  mere  suspicion  that  a  felony  has  been  committed. 

A  public  officer  or  private  citizen  may  take  the  life 
of  a  felon  if  it  is  absolutely  necessary  to  do  so  in 
order  to  prevent  his  escape  or  to  make  the  arrest. 
As  where  a  robber  is  running  from  the  scene  of  a 
highway  robbery;  or  a  burglar  is  fleeing  from  the 
house  at  night.  Such  killing  must  be  necessary,  and 
it  behooves  the  officer  to  be  careful  of  the  condi- 
tions under  which  such  a  killing  takes  place,  so  that 
the  necessity  may  not  be  questioned.  (18) 

If  such  felon  has  been  arrested  and  others  at- 
tempt to  rescue  the  prisoner,  the  officer  may  also  be 
justified  in  killing  those  who  attempt  the  res- 
cue.    (19) 


(17)  RatclifY  v.  Burton,  3  B.  &  P.,  223. 

(18)  21  Cyc,  796,  and  cases  there  cited. 

(19)  State  v.  Bland,  97  N.  C,  438. 

106 


AID    OF    CIVIL   AUTHORITIES, 

A  homicide  is  justifiable  when  committed  by 
necessity  and  in  good  faith  in  order  to  prevent  a 
felony  attempted  by  force  or  surprise,  such  as  mur- 
der or  robbery.  But  it  may  be  necessary  to  defend 
such  action  and  to  show  that  the  person  killed  had 
done  certain  things  which  plainly  indicated  the  in- 
tention of  committing  the  murder  or  the  robbery. 
Furthermore,  the  killing  must  be  done  during  the 
attempt  and  not  after  the  would-be  felon  has  de- 
sisted from  the  attempt.  (20) 

102.  Arrest  After  Escape.  A  person  prop- 
erly arrested  with  or  without  a  warrant  may,  if  he 
escapes  from  custody,  be  rearrested  without  a  war- 
rant. But  his  escape  does  not  always  create  an  addi- 
tional offense.  Therefore,  generally,  no  more  force 
should  be  used  for  the  last  arrest  than  for  the 
first.     (21) 

103.  Arrest  for  Misdemeanor.  No  peace- 
officer  may  arrest  any  person  who  has  committed  a 
misdemeanor  without  first  securing  a  warrant.  But 
there  are  three  exceptions  to  this  rule,  and  under 
any  one  of  them  no  warrant  is  needed.  The  excep- 
tions are  where  the  officer  is  within  view  when  the 


(20)     21  Cyc,  7  99,  and  cases  there  cited, 

(21  j     3  Cyc,  898;  Cahill  v.  People,  106  III,  621; 

Com.  V.  McGahey,  11  Gray  (Mass.)  191;  Harft  v. 
McDonald.  1  N.  Y..  City  Ct.,  181 ;  Allen  v.  Martin, 
10  Wend.  (N.  Y.)  300,  25  Am.  Dec,  564;  Rischer 
V.  Mehan,  11  O.  C.  C,  403. 

107 


AID    OF    CIVIL   AUTHORITIES. 

misdemeanor  is  committed  or  is  attempted.  Further- 
more, it  is  the  right  of  the  peace-officer  to  arrest, 
without  a  warrant,  one  who  assaults  him,  or  other- 
wise interferes  with  him,  while  he  is  discharging  his 
duty  as  a  public  peace-officer.     (22) 

104.  Force  Properly  Used  Therefor.  Ex- 
cept in  self-defense,  a  civil  officer  may  not  shed 
blood  in  arresting,  or  preventing  the  escape  of  one 
whom  he  has  arrested,  for  an  offense  less  than  fel- 
ony, even  though  the  offender  cannot  be  taken  other- 
wise.  (23) 

105.  Civil  Officers  Should  Confer  Full 
Powers.  If  troops  are  to  successfully  act  in  the  aid 
of  civil  authorities,  it  is  indispensable  that  such  civil 
authorities  should  give  the  military  officer  full  power 
to  use  his  force  as  peace-officers,  by  specific  orders, 
and  to  do  anything  further  that  may  be  necessary 
to  prevent  affrays  and  breaches  of  the  peace.  It 
must  be  remembered  that  a  civil  officer  cannot  dele- 
gate his  powers  to  the  military  officer.  He  must 
order  the  military  officer  to  do  certain  specific 
things.      (24)     If  the  minor  civil  authorities  have 


(22)  3  Cyc,  881-883. 

(23)  This  is  the  rule  in  Alabama,  Arkansas,  Ken- 
tucky, Mississippi,  New  York,  Ohio,  Tennessee,  and 
is  the  United  States  rule.  In  Missouri  and  some  other 
jurisdictions  all  the  force  necessary  to  overcome  re- 
sistance may  be  used.    See  Sections  107,  108,  109. 

(24)  A   regular  and   general   deputy   sheriff  may 

108 


AID    OF    CIVIL   AUTHORITIES. 


not  sufficient  powers,  they  may  join  with  the  mili- 
tary commanding  officer  in  procuring  from  the  gov- 
ernor a  telegram  outlining  the  further  powers  neces- 
sary in  the  emergency.     Such  telegram  should  be  in 


perform  all  the  ministerial  duties  that  a  sheriff  may 
perform ;  but  a  special  deputy  may  only  perform  the 
particular  acts  ordered  by  the  sheriff.  25  A.  &  E. 
Ency.  Law,  2nd  Edn.,  p.  675.  A  sheriff  has  power  to 
appoint  a  person  to  do  a  particular  act,  as,  to  serve 
a  certain  writ,  (for  arrest)  although  such  person  may 
not  be  a  general  deputy  or  act  under  the  oath  required 
of  such  deputy  by  statute.  Procter  v.  Walker,  12  Ind. 
6C0.  Chief  Justice  Kent,  of  the  Supreme  Court  of 
New  York,  held  with  reference  to  a  sheriff's  powers : 
"The  sheriff  had  come  to  the  place  to  execute  the 
process,  and  meeting  with  resistance  from  the  house, 
which  he  had  not  strength  to  subdue,  he  went  back 
to  Goshen  for  assistance,  and  directed  the  plaintiff  and 
others  to  aid  and  assist,  in  preventing,  in  the  mean- 
time, the  escape  of  the  rioters.  He  must  be  deemed, 
in  this  case,  to  have  been  constructively  present,  so 
as  to  justify  an  arrest  of  the  rioters,  during  his  tem- 
porary absence,  provided  he  was  absent  on  that  busi- 
ness. The  sheriff  may  take  the  power  of  the  county, 
if  necessary,  after  resistance,  to  execute  process. 
Every  man  is  bound  to  be  aiding  and  assisting,  upon 
order  or  summons,  in  preserving  the  peace  and  appre- 
hending offenders,  and  is  punishable  if  he  refuses. 
(2  Hale's  H.  P.  C,  86.)  The  sheriff  is  present  by 
his  authority,  if  he  be  actually  engaged  in  efforts  to 
resist  and  has  commanded  and  is  continuing  to  com- 
mand and  procure    assistance.     When  he  is  calling 

109 


AID    OF    CIVIL   AUTHORITIES. 

the  form  of  an  order  to  the  miHtary  commander.  A 
governor  will  not  send  troops  to  quell  a  mob  or  riot 
unless  civil  authority  is  exhausted  and  protection  of 
life  and  property  demand  it.  (25) 

106.  Prevention  of  Crime  is  absolutely  neces- 
sary to  secure  restoration  of  peace  and  order.  If  the 
orders  of  the  military  commander  are  as  full  as 
necessary,  his  forces  may  be  used  in  a  general  round- 
up of  the  disorderly  elements  of  the  community. 

When  the  jails  are  full  of  these  people,  lawless- 
ness will  begin  to  disappear.  But  in  order  that  the 
military  commander  may  gain  and  maintain  control 
of  the  situation,  the  violaters  of  law,  when  arrested, 
must  be  tried  without  fear  or  favor  by  the  proper 
courts.  If  these  courts  are  prompt  to  act,  they  may 
render  material  aid  in  preventing  loss  of  life  and 
property. 

107.  Affrays.     An  aft'rav  is  of  similar  nature 


upon  the  power  of  the  county,  to  enable  him  to  over- 
come resistance,  he  cannot  be  actually  present  in  every 
place  where  the  power  may  be  needed.  The  law  does 
not  require  him  to  be  an  eye  witness  or  ear  witness 
of  what  occurs.  If  so,  he  could  not  use  the  power  of 
the  county.  He  is  constructively  present  so  long  as 
he  is  in  the  county  and  is  bona  fide  and  strictly  en- 
gaged in  the  business  in  which  the  power  is  engaged." 
Coyles  V.  Hurtin,  10  Johns.,  85,  88.  As  to  sheriff's 
civil  power  to  quell  riot,  see  note  to  Sec.  116. 

(25)     Nat.  Guard  v.  Strikers,  26  C.  C.   (Penna.), 
585. 

110 


AID    OF    CIVIL    AUTHORITIES. 

to  a  riot.  It  consists  in  the  fighting  together  of  two 
or  more  persons,  either  by  mutual  consent  or  other- 
wise, in  some  pubHc  place,  to  the  terror  of  the  peo- 
ple. The  suppression  of  affrays  is  dependent,  in  a 
great  measure,  on  the  right  to  arrest  without  a  war- 
rant, outlined  in  sections  one  hundred  and  one  hun- 
dred and  three. 

When  there  is  a  quarrel  between  persons  who 
have  come  to  blows,  or  a  riot,  or  other  public  breach 
of  the  peace,  the  duty  is  imposed  on  every  one  not  an 
officer,  especially  therefore  on  every  officer,  to  in- 
terfere in  a  proper  manner,  and  separate  the  com- 
batants or  suppress  the  disturbance.  A  mere  private 
person  thus  interfering,  may  even  justify  the  killing 
of  a  rioter  if  it  was  inevitable.  After  the  affray  is 
ended,  arrests  may  not  be  made  without  a  warrant 
unless  a  felony  has  been  committed.  (26) 

108.  A  Breach  of  the  Peace  may  consist  of  a 
criminal  act  of  the  sort  which  disturbs  the  public 
repose,  or  of  acts  of  public  turbulence  in  violation 
of  the  public  peace,  such  as  a  public  prize  fight;  of 
an  invasion  of  the  citizens'  right  of  personal  securi- 


(26)  Bishop  Crim.  Law,  6th  Edn..  Sec.  534.  654; 
Pond  v.  People,  8  Mich..  150;  2  Cyc.  49-50.  If 
rioters  and  other  like  offenders  stand  their  ground, 
and  only  by  killing  them  can  the  disorder  be  sup- 
pressed, they  who  do  it  are  justified.  Bishop  Crim. 
Law,  Sees.  14,  648,  655 ;  1  Hawk  P.  C.  Curw,  ed.,  p. 
81. 

Ill 


AID    OF    CIVIL   AUTHORITIES. 

ty;  or  of  acts  such  as  tend  to  excite  violent  resent- 
ment. Actual  personal  violence  is  not  always  neces- 
sary to  create  the  offense,  but,  when  not  necessary, 
the  conduct  and  language  of  the  wrong  doers  must 
be  of  such  a  character  as  to  induce  terror  or  fear  of 
personal  violence.  (27) 

109.  What  Constitutes  Presence  or  View. 
An  offense  is  committed  in  the  presence  or  view  of 
an  officer  in  several  ways,  namely :  within  eyesight 
of  the  officer,  within  hearing  of  the  officer  and  when 
the  officer  comes  within  actual  view  before  the  affair 
is  over.  (38) 

110.  Military  Officers'  Discretionary 
Powers.  While  military  officers  must  perform  only 
such  aid  as  is  required  by  civil  authorities,  they  have 
a  discretion,  which  they  may  freely  use,  as  to  the 
best  methods  to  be  employed  to  carry  out  an  order 
received  from  civil  authorities.  (29) 

When  the  mayor  of  a  city,  properly  authorized  by 


(27)  State  v.  Hanky,  47  Vt.,  290;  State  v.  War- 
ner, 34  Conn.,  276,  5  Cyc,  1024;  Reg.  v.  Brown, 
Car.  &  M.,  314;  Bishop  Crim.  Law,  Sec,  260,  536; 
State  V.  Limn,  49  Mo.,  90. 

(28)  3  Cyc,  887;  Jones  v.  Seward,  40  Barb.,  563. 
When  an  arrest,  requiring  a  warrant,  has  been  made, 
it  is  presumed  that  the  officer  had  a  warrant,  or  ar- 
rested on  view.  Davis  v.  Pac.  Phone  Co.,  127  Cal., 
312. 

(29)  State  v.  Coit.  8  Ohio  Dec,  62. 

112 


AID    OF    CI\'I[.    AUTHORITIES. 

law,  calls  out  troops,  on  tlie  ground  that  a  riot  or 
mob  is  threatened,  the  military  commander  may,  be- 
fore such  riot  has  actually  taken  place,  be  ordered 
by  the  mayor  to  repair  to  a  particular  place,  and 
there  perform  any  specific  duty,  such  as  clearing  the 
streets,  which  in  his  judgment  is  necessary  to  pre- 
vent the  threatened  mob  or  riot.  (30) 

Officers  of  the  militia,  called  out  by  a  civil  magis- 
trate, under  proper  statutes,  to  aid  the  civil  authority 
in  enforcing  the  laws,  cannot  be  entrusted  with  dis- 
cretionary power  as  to  the  measures  to  be  adopted, 
but  can  only  direct  the  details  of  the  mode  of  execut- 
ing specific  orders  received  from  the  civil  magis- 
trate.  (31) 

The  foregoing  rules  were  laid  down  by  courts 
where  civil  officers  were  attempting  to  control  the 
situation  by  the  aid  of  troops.  In  exercising  dis- 
cretion as  to  quelling  a  disturbance,  or  carrying  out 
other  orders  of  the  civil  authorities,  consultation 
may  be  had  with  the  civil  authorities,  where  possible, 
and  officers  will  act  along  lines  of  the  least  resist- 
ance. They  may  request  civil  authorities  to  make 
oral  proclamations  at  proper  times.  The  question 
of  resorting  to  rifle  fire  will  be  discussed  in  the  next 
two  sections.  Methods  of  procedure  are  indicated 
in  chapter  sixteen. 


(30)  Ela  v.   Smith,  Tl   Mass.    (5  Grav)    121;  66 
Am.  Dec.  356.    (1857.) 

(31)  lb. 


AID    OF   CIVIL   AUTHORITIES. 

111.  Resisting  Attacks  of  Mob.  If  militia- 
men are  acting  lawfully  in  the  line  of  their  duty  in 
suppressing  a  riot  and  the  mob,  or  a  member  thereof, 
makes  an  attack  upon  them  which  endangers  the 
life  of  one  or  more  of  such  militiamen,  rifle  fire  may 
be  resorted  to  in  resisting  the  attack  and  defending 
the  lives  of  the  men  of  the  command.  The  rule  of 
law  that  would  apply  in  such  a  case  is  the  same  rule, 
hereafter  quoted,  that  justifies  a  citizen  in  taking 
the  life  of  a  burglar  as  he  enters  the  citizen's  house, 
and  protects  a  traveller  in  shooting  the  highway 
robber  who  demands  his  money.  (32)  Generally, 
in  resisting  such  attacks,  whatever  force  is  requisite, 
is  lawful.  (33)  In  resisting  attacks,  however,  it 
is  well  to  bear  in  mind  the  distinction  between  a 
felony  and  a  misdemeanor  where  the  attack  is  more 
mischievous  than  serious.  It  should  be  remembered 
that  the  force  requisite  in  resisting  an  attempted 
felony  may  not  be  safely  employed  in  resisting  an 
attempted  misdemeanor.  Verbal  abuse  by  a  mol) 
does  not  of  itself  justify  a  military  officer  in  using 
severe  means  of  repression.  To  prevent  this  loud 
talk  and  oral  bravery  from  working  the  mob  up  to 
overt  acts,  the  taking  of  a  few  prisoners  is  sometimes 
advisable.  Such  action  is  really  a  means  of  defense, 
because  an  offensive  defense  is  tactically  the  best  de- 


(32)  Com.  v.  Shortall,  206  Pa.  St..  165. 

(33)  Hare's  Am.  Const.  Law,  906. 

114 


AID    OF    CIVIL   AUTHORITIES. 

fense.  If  such  prisoners  cannot  be  taken  without 
exciting  the  mob  to  some  overt  act  of  hostiHty,  then 
the  mihtary  officer  should  require  from  the  civil 
authorities  an  order  to  clear  the  streets. 

11j2.  Firing  on  Mob.  An  order  to  disperse, 
then  the  bayonet,  where  practicable,  will  be  first 
used.  It  is  a  general  rule  of  the  common  law  that, 
where  rioters  stand  their  ground  and  the  riot  can- 
not be  suppressed,  or  the  mob  cannot  be  dispersed, 
with  out  killing  one  or  more  persons,  such  homicide 
will  be  justified.     (34) 

This  general  rule  would  invariably  protect  a  mili- 
tia officer  who  fired  on  a  mob  under  proper  orders 
from  the  civil  authorities,  provided  the  mob  was  in 
the  commission  of  a  felony  or  attempting,  by  force, 
to  commit  one,  and  could  not  be  restrained  by  milder 
means.  But,  before  firing,  the  commanding  officer 
should  bear  in  mind  that  he  may  afterward  be  re- 


(34)  21  Cyc,  798.  Bishop  Crim.  Law,  Sees. 
653-5;  State  v.  Rhodes,  Houst.  Cr.  Cas.  (Del.)  476; 
Bassett  v.  State,  44  Fla.  12,  33  So.,  262 ;  Mitchell  v. 
State,  43  Fla.,  188,  30  So.,  803 ;  Richard  v.  State,  42 
Fla.,  528,  29  So.,  413 ;  Pond  v.  People,  8  Mich.,  150 ; 
Com.  v.  Daley.  4  Pa.  L.  J..  150.  See  Lynn  v.  People, 
170  111.,  527,  48  N.  E.,  964.  Before  any  offensive 
move  against  a  body  of  rioters  it  is  advisable  to  make 
bystanders  disperse  or  declare  their  character,  as  in- 
dicated in  Sec.  123.  See  state  statutes  referred  to  in 
Sec.  116. 

115 


All)    OF    CIN'IL   AUTHORITIES. 

quired  to  prove  these  conditions  existed.    He  should 
see  that  the  proof  exists  and  will  be  available. 

Where  a  soldier  receives  what  he  reasonably  be- 
lieves to  be  a  lawful  order,  from  his  superior  officer, 
and  kills  another  in  the  execution  of  such  order,  his 
action  is  justifiable.     (35) 

The  general  rule  above  stated  is  worded  in  a  quo- 
tation by  the  Supreme  Court  of  Pennsylvania  as 
follows : 

"When  a  riot  assumes  such  proportions 
that  it  cannot  be  quelled  by  ordinary 
means,  and  threatens  irreparable  injury  to 
life  and  -property,  the  sheriff  may  call 
forth  the  posse  cornitatiis  and  exercise  an 
authority  as  their  chief  which  can  hardly 
be  distinguished  from  that  of  a  general  en- 
gaged in  repelling  a  foreign  enemy  or  sub- 
duing a  revolt.  Arms  may  be  used  as  in 
battle  to  bear  down  resistance;  and  if  loss 
of  life  ensues,  the  circumstances  will  be  a 
justification.  The  measure  does  not,  how- 
ever, cease  to  be  civil,  or  fall  beyond  the 
rules  which  apply  when  a  house  is  entered 
in  the  night  by  burglars,  or  a  traveller 
shoots  a  highwayman  who  demands  his 
money.  Nor  will  it  change  its  character 
because  the  military  are  called  in  and  the 


(35)     See  authorities  cited  in  chapter  twenty-one. 

116 


AID    OF    CIXIL   AUTHORITIES. 

sheriff  delegates  his  authority  to  the  com- 
manding officer."     (36) 

An  officer  should  not  make  a  speech  to  the  mob 
in  which  he  threatens  it  with  rifle  fire  if  some  of  its 
members  commit  a  misdemeanor ;  nor  should  he 
make  such  threat  conditioned  upon  their  breaking 
the  door  of  a  public  building.  If  the  destruction 
of  the  door  was  all  the  officer  had  to  fear,  he  should 
not  wait  until  the  door  was  destroyed  in  order  to 
protect  the  public  property.  Moreover,  such  threats 
are  in  the  nature  of  a  dare  and,  for  that  reason, 
sometimes  have  an  effect  contrary  to  the  one  in- 
tended.    (37) 

When  a  threat  is  made  to  the  mob,  by  the  mili- 
tary officer,  it  should  be  conditioned  upon  some  act, 
of  the  mob.  which  will  fully  authorize  a  commanding 
offi.cer  to  give  an  order  to  fire.  Threats  of  this 
nature  are  usually  made  when  the  military  force  is 
small  in  comparison  with  the  size  of  the  mob.  Un- 
der such  circumstances  they  may  be  the  only  means 
of  procedure,  and  in  these  cases  the  threat  should  be 
based  upon  a  warning  to  the  mob  not  to  attempt  to 
commit  an  act  which  amounts  to  a  felony.  Offensive 
measures  are  undoubtedlv  better  where  the  size  of 


(36)  Hare's  American  Const.  Law  Lect.,  14,  p. 
906 ;  Com.  v.  Shortall,  206  Pa.  St.,  165,  55  Atl.,  952, 
98  Am.  St.  Rep.,  759,  65  L.  R.  A.,  193. 

(37)  State  v.   Coit,   8  Ohio  Dec,   62. 

117 


AID    OF    CIVIL   AUTHORITIES. 

the  military  force  \varraiits  their  adoption.  The 
reason  for  this  is  that  if  a  mob  is  permitted  to  make 
bkiffs,  it  becomes  more  lawless  and  outrageous.  If 
the  military  officer  bluffs  the  mob,  under  proper 
control,  the  consciousness  of  wrong  doing  will  assist 
the  fears  of  the  mob  in  causing  its  dispersal. 

In  dispersing  the  mob,  care  must  be  taken  not  to 
lose  control  of  the  troops.  If  rioters  are  followed 
and  needlessly  cut  down  after  they  have  dispersed, 
it  is  murder.  (38) 

113.  Justifiable  Homicide  by  Citizens.  Two 
decisions  to  the  effect  that  citzens  may  act  inde- 
pendently in  aid  of  civil  authorities,  where  necessary, 
are  as  follows: 

"Citizens  may,  on  their  own  authority, 
lawfully  endeavor  to  suppress  a  riot  when 
it  assumes  a  dangerous  form,  and  may  for 
that  purpose  arm  themselves ;  and  what- 
ever is  honestly  done  by  them  in  execution 
of  the  object  will  be  supported  and  justi- 
fied by  the  common  law,  though  it  is  more 
discreet  for  every  one  in  such  a  case  to  be 
assistant  to  the  justices  and  sheriff  in  do- 
ing so."    (39) 

"Private  persons  may  forcibly  interfere 


(38)  Hare's  Am.  Const.   Law.  932. 

(39)  Commonwealth  v.  Hare,  2  Clark,  467,  4  Pa. 
Law  J.,  257. 

118 


AID    OF    CIVIL   AUTHORITIES. 

to  suppress  a   riot  or  resist  rioters;  and 
they  may  justify  homicide  in  so  doing,  if 
they  cannot  otherwise  resist  them,  or  de- 
fend   themselves,    their    families   or   their 
property."     (40) 
It  would  seem  from  this  that  where  a  militia  com- 
pany w^as  on  duty  and  a  riot  occurred  in  its  imme- 
diate vicinity,  it  might,  where  the  emergency  was 
great  and  the  necessity  apparent,  act  independently 
in  suppressing  a  riot.    But  extreme  caution  must  be 
exercised  in  an  act  of  this  nature  because,  under 
many  of  the  state  constitutions,  it  is  provided  that 
the   military   shall   ahvays  be   subject   to   the  civil 
power,  and  this  provision  would   require  the  civil 
power  to  act  first. 

114.  Homicide  When  Rioters  Resist  Arrest. 
A  decision  of  the  State  of  Pennsylvania  lays  down 
this  rule: 

(1844)  "In  the  suppression  of  dan- 
gerous rioters  the  sheriff  and  his  assist- 
ants may  arrest,  detain  and  imprison  riot- 
ers; and,  if  they  resist  and  continue  their 
riotous  actions,  killing  them  becomes  jus- 
tifiable." (41) 
But  in  the  general  application  of  the   rule  just 


(40)  Pond  v.  People,  8  Mich.,  150. 

(41)  Com.  v.  Daley,  2  Clark,  361.  4  Pa.  Law  J.. 
150. 

119 


AID    OF    CIVIL   AUTHORITIES. 

Stated,  it  is  well  to  bear  in  mind  the  provisions  of 
section  one  hundred  and  one  and  the  distinction  be- 
tween felony  and  misdemeanor.    (43) 

115.  Protecting  Prisoner.  It  is  the  duty  of 
a  military  officer,  in  command  of  a  military  organi- 
zation, called  to  protect  a  person  under  arrest  from 
a  mob,  to  use  only  such  force  as  is  necessary  to  pro- 
tect the  prisoner,  and  the  public  property. 

And  such  officer  cannot  legally  take  human  life, 
in  accomplishing  those  ends,  until  he  has  ascer- 
tained, by  such  careful,  prudent  and  reasonable  exer- 
cise of  his  faculties  as  circumstances  permit,  that  it 
is  necessary  to  accomplish  the  purpose  in  hand.    (43) 

li'J.  State  Statute.s  Control  Riot  Duty. 
When  state  troops  are  aiding  minor  civil  authorities 
of  the  same  state,  the  statutory  provisions  of  that 
state,  relative  to  quelling  riots,  may  be  fol- 
lowed.    (44) 


(42)  And  see  Sec.   11  fi. 

(43)  State  v.  Coit,  8  Ohio  Dec,  62. 

(44)  22  Cvc.  page  1452:  Orr  v.  New  York.  64 
Barb.  (N.  Y.)'lOG;  Greer  v.  New  York,  .3  Rob.,  (N. 
Y.)  406;  St.  Micheal's  Church  v.  Philadelphia  county. 
Brightly  (Pa.),  121.  "One  reason  why  there  have 
been  so  few  prosecutions  in  our  state  courts  on  ac- 
count of  the  consequences  of  firing  upon  rioters,  prob- 
ably is  that  the  statutes  of  a  considerable  number  of 
the  states,  in  recognition  indeed  of  a  common  law 
principle,  expressly  disclaim  the  holding  liable  of  of- 
ficials and  others  concerned  in  such  firings."  Win- 
ihrop's  Mil.  T.aw  &  Prec.  p.   1397. 

120 


AID    OF    CIVIL   AUTHORITIES. 

Statutes  of  many  of  the  states  expressly  declare 
that  a  homicide  is  justifiable  in  the  suppression  of  a 
riot.     (45) 

117.  Territorial  Limits.  The  Supreme  Court 
of  New  York,  in  a  case  growing  out  of  the  destruc- 
tion of  the  American  steamer  Caroline,  in  waters  of 
the  United  States,  by  Canadian  militia  (Dec.  30, 
1837).  lays  down  this  dicta: 

"A  soldier,  in  time  of  war  between  us 
and  England,  might  be  compelled  by  an 
order  from  our  government  to  enter  Can- 
ada and  fight  against  and  kill  her  soldiers. 
But  should  Congress  pass  a  statute  com- 
pelling him  to  do  so  on  any  imaginable 
exigency,  or  under  any  penalty,  in  time 
of  peace;  if  he  should  obey  and  kill  a  man, 
he  would  be  guilty  of  murder."     (-10) 

(45)  Such  statutes  have  been  enacted  in  Califor- 
nia, Idaho,  Indiana,  Massachusetts,  Missouri,  New 
Hampshire,  New  Jersey,  Ohio,  Oregon,  Vermont,  Vir- 
ginia, \\'est  Virginia,  Wisconsin  and  other  states. 
Their  provisions  usually  indicate  the  powers  of  the 
civil  officers. 

(46)  The  People  v.  McLeod.  1  Hill  (N.  Y.)  377, 
42G ;  "A  sovereign  cannot  compel  a  man  to  go  into  a 
neighboring  country,  whether  in  peace  or  war,  and  do 
a  deed  of  infamy.  This  is  exemplified  in  the  case  of 
spies.  A  sovereign  may  solicit  and  bribe ;  but  he  can- 
not command.  A  thousand  commands  would  not  save 
the  neck  of  a  spy,  should  he  be  caught  in  the  camp 
of  the  enemy."     (Vattel,  B.  3,  ch.  10,  Sec.  179.) 

121 


AID    OF    CIVIL   AUTHORITIES. 


As  it  is  impossible,  under  the  U.  S.  Constitution, 
for  one  state  of  our  nation  to  declare  war  against 
another,  or  against  a  foreign  power,  it  follows  that 
state  troops,  on  duty  in  state  service,  must  abso- 
lutely confine  their  operations  within  the  boundaries 
of  the  state  they  serve. 

When  acting  under  call  of,  and  by  direction  of, 
a  minor  civil  authority,  it  may  be  necessary  to 
secure  the  order  of  the  governor  before  extending 
operations  beyond  the  city,  district  or  county  over 
which  the  civil  commander  has  jurisdiction. 


122 


CHAPTER  TEN. 


CO-OPERATION  WPfH  CIVIL 
AUTHORITIES. 


118.  Disputes  Between  Civil  Officers  may 
sometimes  arise  during  the  progress  of  a  riot  or 
tumult.  To  illustrate :  A  mob  is  threatening  law- 
less operations  at  a  factory  near  the  boundary  line 
of  a  city.  The  mayor  and  the  county  sheriff  are 
both  authorized  by  law  to  call  for  troops.  These 
officers  have  different  views  as  to  the  character  of 
the  emergency,  and  as  to  the  necessity  for  and  the 
manner  of  using  troops.  The  military  commander 
is  thus  placed  in  a  delicate  situation  because  the  two 
civil  officers  may  have  concurrent  jurisdiction  over 
him.  The  military  officer,  having  no  judicial  duties 
to  perform  as  long  as  the  civil  officers  are  in  con- 
trol, cannot  decide  as  to  which  civil  officer  is  giving 
the  proper  directions.  But,  under  these  circum- 
stances, the  military  officer  may  be  able  to  make  a 
shrewd  guess  as  to  which  civil  officer  is  right.  Un- 
der these  circumstances  the  military  officer  must 
truthfully  report  the  facts  to  the  governor  and  secure 
a  decision  which  will  protect  him  in  future  opera- 
tions.    In  securing  this   decision  he  may  ask   for 

123 


CO-OPERATION,    &C. 

directions  as  to  which  civil  officer  he  shall  serve.  He 
may  even  be  required  to  arrest  a  civil  officer  who 
is  wrongfully  using  his  authority  and  thereafter 
act  under  another  civil  authority,  who  had  concur- 
rent jurisdiction  with  the  one  arrested ;  but  who  is, 
in  the  opinion  of  the  governor,  acting  rightfully  in 
attempting  to  subdue  the  disturbance.  The  gover- 
nor has  the  power  to  make  this  decision.     (1) 

119.  Qualified  Martial  Law.  Under  some 
of  the  circumstances,  indicated  in  the  preceding  sec- 
tion, it  may  be  necessary  to  resort  to  a  partial  degree 
of  martial  law,  namely:  where  by  the  decision  of 
I  he  governor  a  military  officer  is  required  to  act 
under  the  orders  of  the  sheriff  and  to  supersede  the 
mayor  in  his  control  of  affairs  within  the  city,  uv 
conversely  where  the  sheriff  is  superseded  and  the 
mayor  is  upheld.  Under  these  difficult  circum- 
stances the  orders  from  the  governor  will  doubtless 
require  the  military  officer  to  co-operate  with  that 
civil  authority  whom  the  governor  decides  to  be 
rightfully  performing  his  duties.  If  the  military 
commander,  under  these  or  similar  conditions,  is 
required  to  take  full  control  of  the  civil  affairs  of 
a  certain  part  of  any  communit}-,  such  control  may 
require  the  exercise  of  full  martial  law  powers  and 


(1)     Luther  v.  Borden.  7  How.   (U.  S.)   40;  Sec. 

124 


CO-OPERATION,    &C. 

may  be  designated  as  co-operative  martial  law.  (2) 
120.  Degree  of  Co-operation.  Where,  under 
circumstances  indicated  in  the  last  preceding  section, 
the  military  commander  is  required  to  co-operate 
with  one  authority  and  supersede  another,  the  ques- 
tion is  simpler  if  the  military  officer  is  ordered  to 
adhere  to  the  plan  adopted  by  the  sheriff  whose 
jurisdiction  as  a  peace-officer  includes  the  city  as 
well  as  the  county.  Under  such  circumstances,  the 
orders  of  the  sheriff  would  have  force  in  any  part 
of  the  county,  and  it  would,  in  most  instances,  be 
proper  for  the  governor  to  direct  the  sheriff  to 
assume  control  of  the  preservation  of  the  peace  in 
the  city  until  a  new  mayor  could  be  properly  in- 
ducted into  office  or  the  old  one  brought  to  see  the 
right. 

But  where  the  sheriff  is  superseded,  the  mayor, 
having  no  jurisdiction  outside  the  city,  could  not 
direct  affairs  beyond  the  city  limits,  and  in  these 
outside  districts  the  military  commander  might  be 
ordered  to  assume  supreme  control  and  carry  out 
the  W'ill  of  the  governor  until  order  was  restored. 
Under  the  circumstances  last  recited,  the  military 
commander  would  act  under  the  mayor  within  the 
city  (subject,  of  course,  to  orders  of  the  governor), 
but  would  act  solely  under  the  governor's  order  in 
the  remainder  of  the  countv. 


(2)     See  Sec.  193. 

125 


CO-OPERATION,   &C. 

131,  Prisoners.  Jn  the  foregoing  situation, 
where  the  mayor  had  been  superseded,  the  mihtary 
officer  would  have,  under  control  of  the  sheriff, 
jurisdiction  over  the  city  prison  and  probably  of  the 
police  force.  Where  the  sheriff  was  superseded,  the 
county  jail  would  probably  be  under  the  jurisdiction 
of  the  military  officer,  and  would  be,  for  the  time 
being,  a  military  prison.  The  state  prisoners  there 
incarcerated  under  the  orders  of  the  civil  authorities 
would  be  under  the  orders  of  the  governor. 

122.  Where  a  Governor  Acts  Independent- 
ly OF  Civil  Authorities.  The  governor  may  dis- 
pense with  certain  statutory  formalities  where  the 
emergency  requires  it  and  the  state  constitution  per- 
mits him  to  do  so.  Under  a  statute  of  the  State  of 
Washington,  the  governor  in  suppressing  riots  was 
required  to  first  : 

"Request  the  local  authorities  to  sup- 
press such  riot,  *  *  *  and,  if  they  fail, 
neglect,  or  are  unable  to  do  so,  he  shall 
issue  his  proclamation  commanding  such 
persons  to  disperse,  *  *  *  and  if  there- 
after such  imminent  danger  still  continues, 
the  governor  shall  proceed  to  suppress  the 
same  by  calling  into  action  all  the  force 
necessary  to  accomplish  that  purpose." 
But  under  the  constitution  of  that  state  the  gov- 
ernor was  given  power  to  call  forth  the  militia  to 

126 


CO-OPERATION,    &C. 

execute  the  laws  of  the  state.  And  it  was  held  by  the 
Supreme  Court  that  the  course  of  action  prescribed 
by  the  statute  was  not  binding  on  the  governor 
when,  in  his  judgment,  the  danger  of  riot  was  so 
imminent  as  not  to  permit  of  the  delay  necessary  to 
so  many  formalities.     (3) 

Where  the  governor  proceeds  to  act  directly,  with- 
out specific  reference  to  the  civil  authorities,  the 
military  commander  will  nevertheless  co-operate 
with  such  of  the  authorities  as  are  in  accord  with 
the  governor's  plans  and  will  permit  them  to  exer- 
cise their  usual  functions  as  fully  as  is  consistent 
with  the  orders  of  the  governor.  Under  these  con- 
ditions, the  machinery  of  civil  government  w-ould 
be  disturbed  only  where  it  was  necessary  to  do  so 
in  order  to  carry  out  the  orders  received  by  the 
military  commander  from  the  highest  civil  authority 
of  the  state. 

123.  Separating  Rioters  From  Citizens.  It 
has  been  held  that,  in  riotous  and  tumultuous 
assemblies,  all  who  are  present  and  not  actually 
assistant  in  their  suppression  are.  in  the  presumption 
of  law,  participants;  and  the  obligation  is  cast  upon 
a  person  so  circumstanced  to  prove,  in  his  defense, 
his  actual  non-interference.  Where,  however,  the 
sheriff,    or  any    known    conservator  of  the  public 


(3)     Chapin  v.   Ferry,  3  Wash.  St.,  386,  28   Pac. 
754,  15  L.  R.  A.,  116. 

127 


CO-OPERATION,    &C. 

peace,  commands  the  dispersion  of  an  unlawful  or 
riotous  assembly,  there  can  be  no  neutrals,  and  a 
passive  looker  on.  who  remains  on  the  spot,  refus- 
ing to  take  part  in  aid  of  the  suppression  of  the  riot, 
is  a  principal  in  the  riot. 

Under  this  rule  of  law  a  civil  officer  acting  under 
lawful  orders  is  able  to  ascertain  the  character  of  the 
assembled  crowd.  He  may  by  this  means  brand,  in 
rare  instances,  even  civil  authorities  as  rioters;  but 
could  only  do  so  when  acting  by  the  direction  of 
other  civil  authorities  or  the  governor.  Where  civil 
authorities  have  elected  to  share  the  lot  of  the  rioters 
the  disturbance  amounts  to  an  incipient  insurrection, 
and  more  drastic  measures  are  necessary  than  in  the 
case  of  a  riot.  Some  degree  of  martial  law  will  be 
necessary  and  the  governor  must  be  kept  advised  uf 
the  turn  of  affairs  so  that  he  may  be  able  to  issue 
the  necessary  orders. 

124.  Concurrent  Martial  and  Civil  Law. 
After  martial  law  is  declared  an  officer  may  lawfully 
arrest  one  whom  he  has  reasonable  grounds  to  be- 
lieve is  engaged  in  the  insurrection,  or  may  order 
the  forcible  entry  of  a  house.  Rut  no  more  force 
can  be  used  than  is  necessary  to  accomplish  the  ob- 
ject; and  if  the  power  is  used  for  the  purpose  of 
oppression,  or  if  any  injury  is  willfully  done  to  per- 
son or  property,  the  person  by  whom  or  by  whose 

128 


CO-OPERATION,    &C. 

order  it  is  committed  will  be  answerable.      (4) 

Where  the  military  commander  and  certain  civil 
authorities  are  co-operating  to  suppress  a  riot  or  in- 
surrection, martial  law  may  be  employed  to  supply 
those  branches  of  the  existing  civil  government 
which  are  absent  and  as  a  substitute  for  those  func- 
tions which  the  civil  authorities  have  ceased  to  exer- 
cise. In  this  way  martial  law  only  supplements  the 
civil  law ;  it  upholds  those  authorities  who  are  exer- 
cising their  proper  civil  powers  and  rounds  out  the 
government  by  furnishing  those  powers  which  are 
absent  or  inert.  In  cases  of  this  nature  the  military 
commander  must,  as  at  all  other  times,  remember 
that  he  is  only  temporarily  in  command  and  that  his 
actions  are  subject  to  review  as  soon  as  civil  govern- 
ment can  be  re-established.  It  may  be  repeated  here 
that  when  a  military  commander  is  exercising  mili- 
tary government  in  a  foreign  territory  he  is  respon- 
sible only  to  God  and  his  superior  officers ;  but  while 
exercising  martial  law  in  his  home  country  he  is 
responsible,  not  only  morally  and  to  military  law. 
for  any  misconduct,  but  he  may  afterwards  be  held 
responsible  to  the  people  and  the  state.  It  is  never- 
theless the  duty  of  the  military  commander  to  obey 
the  lawful  orders  of  the  governor  and.  if  such  orders 
are  specific,  he  may  obey  them  without  fear  of  the 
consequences. 


(4)     Luther  v.  Borden,  7  How.  (U.  S.)  1. 

129 


CO-OPERATION,    &C. 

125.  Habeas  Corpus.  It  is  a  general  rule  that 
the  President  of  the  United  States  may  not  sus- 
pend the  writ  of  habeas  corpus,  throughout  the 
whole  of  the  United  States,  without  the  aid  of  leg- 
islative authority.  But  it  is  now  generally  con- 
ceded that  the  president,  notwithstanding  the  pro- 
visions of  the  federal  constitution,  may  suspend  the 
writ  within  any  territory  affected  by  an  existing 
state  of  insurrection.  (5)  The  essence  of  martial 
law  is  the  suspension  of  the  writ  of  habeas  cotpius 
and  a  declaration  of  martial  law  would  be  useless 
unless  accompanied  by  suspension  of  the  privileges 
of  such  writ.  (6)  It  would  therefore  seem  that 
in  the  situations  indicated  in  sections  one  hundred 
and  eighteen  and  one  hundred  and  nineteen,  and  in 
similar  situations,  the  military  commander,  in  dis- 
tricts where  the  civil  peace  officers  had  been  super- 
ceded, might  detain  prisoners  on  his  own  authority 
and  confine  them,  for  the  public  good,  until  all  vio- 
lence had  subsided  and  civil  power  was  re-estab- 
lished. But  this  power  should  only  be  exercised 
where  the  military  commander  had  secured  specific 
orders  to  that  effect  from  the  governor. 

126.  Rival  Civil  Authorities.  Until  the 
adoption  of  the  constitution  of  1843,  Rhode  Island 


(5)  Ex  parte  Milligan,  4  Wall.  (U.  S.)  142 ;  Grif- 
fin v.  Wilcox,  21  Ind.,  370,  386.    See  Sees.  201,  217. 

(6)  Luther  v.  Borden,  7  How.  (U.  S.)  page  1. 

130 


CO-OPERATION,    &C. 

drew  its  fundamental  law  from  a  charter  issued  by 
Charles  II  in  10(53.  During  all  this  time  its  so- 
called  charter  government  existed.  About  the  close 
of  this  period  a  Mr.  Dorr  headed  a  reform  party 
which  adopted  what  was  styled  a  new  state  consti- 
tution and  elected  state  officers  under  it.  This  was 
done  against  the  protest  of  the  existing  charter  gov- 
ernment. Both  factions  claimed  to  represent  a  ma- 
jority of  the  citizens  of  the  state.  An  armed  insur- 
rection, under  Dorr,  was  organized  for  the  purpose 
of  overthrowing  the  charter  government.  The  char- 
ter government  appealed  to  the  president  who  finally 
instituted  measures  for  its  protection  against  Dorr's 
forces,  then  in  arms.  At  the  time  of  the  president's 
decision  a  battle  seemed  imminent;  but  the  action  of 
the  federal  government,  in  deciding  for  the  charter 
government,  almost  instantly  caused  the  dispersal  of 
Dorr's  forces  and  the  restoration  of  peace. 

The  supreme  court  of  the  United  States,  in  a  case 
involving  some  of  the  foregoing  facts  held  that  it, 
as  a  court,  had  no  power  to  decide  which  of  the  rival 
governments  of  Rhode  Island  was  the  lawful  one. 
That  this  power  resided  in  the  political  branch  of 
the  government  and  that  congress,  by  general  laws 
under  Article  4,  Section  4,  of  the  federal  constitu- 
tion, had  given  the  president  the  power,  and  imposed 
on  him  the  duty,  to  guarantee  each  state  a  republi- 
can  form  of  government.     And  that  part   of  the 

131 


CO-OPERATION,    &C. 

president's  duties  in  this  behalf  consisted  in  his  ex- 
ercise of  the  right  to  decide  whether  or  not  the 
Rhode  Island  charter  government  was  lawful,  or 
had  been  displaced.  When  the  president  so  decided, 
the  courts  were  bound  to  take  notice  of  the  decision 
and  act  under  the  direction  of  the  recognized  gov- 
ernment. On  this  point  the  court  conclude  by  say- 
ing : 

"And  if  a  state  court  should  enter  upon 
the  inquiry  proposed  in  this  case,  and 
should  come  to  the  conclusion  that  the 
government  under  which  it  acted  had  been 
put  aside  and  displaced  by  an  opposing 
government,  it  would  cease  to  be  a  court, 
and  be  incapable  of  pronouncing  a  judi- 
cial decision  upon  the  question  it  under- 
took to  try."     (7) 

The  foregoing  facts  and  opinion  are  set  out  in 
full  because  the  principle  involved  is  one  of  mani- 
festly great  importance.  Applied  to  a  certain  local- 
itv  in  any  state  this  principle  declares  that  the  courts 
must  uphold  the  other  branches  of  the  government 
and  must  not  interfere  with  their  exercise  of  con- 
stitutional powers.  Where  the  constitutional  laws 
of  a  state  direct  the  governor  to  execute  the  laws, 
the  courts  can  not  interfere  with  his  discretionary 
acts.     Moreover,  if.  under  these  same  laws,  the  gov- 


(7)     Luther  v.  Borden.  7  How.  (U.  S.)  40. 

132 


CO-OPERATION,    &C. 

ernor  is  compelled  to  decide  which  of  two  rival  can- 
didates for  civil  office  is  the  rightful  one,  such  deci- 
sion is  an  exercise  of  the  political  power  which  is 
not  vested  in  the  courts  and  the  courts  cannot  dis- 
turb the  decision  unless  it  is  in  plain  violation  of 
the  governor's  constitutional  powers.  To  illustrate : 
If  two  rival  candidates  are  both  claiming  the  office 
of  mayor  of  a  city,  and  the  public  peace  is  disturbed 
by  the  factions  following  these  rivals,  it  is  the  duty 
of  the  governor  to  maintain  the  peace  thus  disturbed. 
In  addition  to  this  duty  and  under  proper  consti- 
tutional provisions  it  may  be  the  duty  of  the  gov- 
ernor to  decide  which  of  the  rivals  is,  in  fact,  en- 
titled to  act  as  mayor.  After  this  last  decision  has 
been  made  it  will  probably  be  the  duty  of  the  mili- 
tary commander,  on  duty  at  the  scene  of  disturbance, 
to  either  co-operate  with  the  declared  mayor,  or  act 
under  his  direction. 

The  questions  indicated  in  this  section  are  too 
complex  to  permit  of  a  full  discussion  here  and  what 
has  been  said  may  be  considered  solely  as  a  guide  to 
a  fuller  investigation  of  the  points  that  may  arise. 


[no 


CHAPTER  ELEVEN. 


OUSTING  AND  REPLACING  CIVIL 
AUTHORITIES. 


127.  Governor  Decides  When  Civil  Author- 
ities Should  be  Replaced.  Mr.  John  M.  Wald- 
ron,  of  the  Colorado  bar,  in  a  brilHant  argument  in 
ihe  supreme  court  of  that  state,  said: 

"The  Constitution  of  this  state  makes  the  gov- 
ernor the  commander-in-chief.  It  imposes  upon 
liim  the  duty  of  suppressing  insurrection  by  armed 
force.  He  can  not  shirk  that  duty ;  he  can  not  dele- 
gate it  to  anybody  else  except  under  his  own  super- 
\ision  and  control.  It  is  a  constitutional  grant  of 
authority.  Does  it  say  that  when  the  governor  ar- 
rives on  the  scene  of  action  with  his  troops  he  ceases 
to  be  commander-in-chief,  and  that  some  local  of- 
lirer  who,  up  to  the  moment  of  the  arrival  of  the 
m.'litary,  might  possibly  have  been  afraid  to  show 
hi?  head  without  the  confines  of  his  own  hearthstone, 
shall  control  the  military  forces  of  the  state?  Does 
it  say  that  the  governor  must  abdicate  his  functions 
to  the  sheriff  and  the  sheriff  be  the  commander-in- 
chief  of  the  military  forces?  Not  a  word,  not  a 
syllable,    in   the  Constitution   declares   anything   of 

134 


OUSTING    CIVIL    AUTHORITIES. 

the  sort.  Something  may  be  tortured  out  of  the 
statutes  of  this  state  by  which  the  governor,  when 
he  arrives  on  the  scene  of  action,  should  allow  the 
local  authorities,  if  there  are  any,  to  assume  charge 
of  the  military  forces,  but  any  statute  that  under- 
takes to  strip  the  governor  of  this  state  of  his  con- 
stitutional powers  and  duties  is  void.  He  is  the 
commander-in-chief.  The  militia,  when  they  are 
on  the  ground,  are  not  civil  forces;  they  are  military 
forces.  For  the  time  being,  by  virtue  of  the  exi- 
gencies of  the  situation,  they  are  the  paramount 
power,  because  all  civil  law  is  dormant — it  does  not 
oxist." 

The  foregoing  statements  were,  in  effect,  held  to 
be  good  law  by  the  court.  The  decision,  however, 
was  based  on  the  fact  that  an  entire  county,  in  the 
mining  region,  was  in  a  tumult  of  lawlessness  which 
amounted  to  insurrection.      (1) 

As  has  been  heretofore  shown  in  section  twenty- 
eight  it  is  an  unquestioned  rule  of  law  that  where 
the  governor's  constitutional  powers  permit  him  to 
call  out  troops  to  suppress  domestic  disturbances, 
his  decision  that  an  emergency  has  arisen  which 
requires  such  call,  is  final  and  cannot  be  questioned. 
This  power  is  not  abridged  by  the  provision  found 
in  so  many  state  constitutions  that:  "The  military 
shall  always  be  in  strict  subordination  to  the  civil 


(1)     In   re   Mover,   85    Pac,   190. 

135 


OUSTING    CIVIL    AUTHORITIES. 

power."'  Such  a  provision  is  found  in  the  consti- 
tution of  New  Jersey,  but  the  supreme  court  of  that 
state  held  that : 

"It  is  true  that  whole  cities  or  districts 

may,    on    great    emergencies,     from    the 

necessity  of  the  thing,  be  declared  to  be 

under  martial  law,  and  be  subjected  to  all 

the  rules  of  war  by  a  military  commander; 

and   in   that   case  the  power  of  the  civil 

courts  is  wholly  superseded.''     (2) 

I'he  highest   courts   of    Pennsylvania   and   other 

states  declare  the  same  doctrine.      (3)      Were  this 

right  denied  the  chief  executives  of  the  states,   it 

would  be  necessary  for  the  federal  government  to 

constantly  interfere  with  the  executive  functions  of 

the  various  state  governments. 

There  are  rare  instances,  however,  where  the  state 
legislature  is  constitutionally  endowed  with  certain 
functions  which  properly  belong  to  the  governor. 
As  these  instances  are  but  exceptions  to  the  general 
rule,  and  can  be  easily  determined  by  a  short  study 
of  the  student's  own  state  constitution,  they  will  not 
be  discussed  in  this  work. 

128.  Governor  May  Act  Summarily.  With 
reference  to  the  governor's  powers,  in  preserving  the 

(2)  Kirkpatrick,  C.  J.,  in  State  v.  Davis,  4  N.  J. 
L.    (1   Southard),   311,   313. 

(3)  Appeal  of  Plartranft  et  al.,  85  Pa.  St.,  433; 
Chapin  v.  Ferrv,  3  Wash..  386,  28  Pac,  754;  In  re 
Mover,  85   Pac!,  190. 

136 


OUSTING    CIML    AUTHORITIES. 

peace  and  executing  the  lawfully  declared  will  of 
the  people,  the  supreme  court  of  Pennsylvania,  say : 
"What,  then,  are  the  duties,  powers  and  privi- 
leges of  the  governor?  In  the  language  of  the  Con- 
stitution, article  4  section  2,  'The  supreme  executive 
power  shall  be  vested  in  the  governor  who  shall  take 
care  that  the  laws  be  faithfully  executed.'  Also 
same  article,  section  7,  The  governor  shall  be  com- 
mander-in-chief of  the  army  and  navy  of  the  com- 
monwealth, and  of  the  militia,  except  when  they 
shall  be  called  into  the  actual  service  of  the  United 
States.'  He  is,  also,  invested  with  the  appointing 
and  pardoning  powers;  the  power  to  convene  the 
legislature  in  cases  of  emergency,  and  to  approve,  or 
veto,  bills  submitted  to  him  by  the  general  assembly. 
It  is  scarcely  conceivable  that  a  man  could  be  more 
completely  invested  with  the  supreme  power  and 
dignity  of  a  free  people.  Observe,  the  supreme  exec- 
utive pozuer  is  vested  in  the  governor,  and  he  is 
charged  with  the  faithful  execution  of  the  hnvs,  and 
for  the  accomplishment  of  this  purpose  he  is  made 
commander-in-chief  of  the  army,  navy  and  militia 
of  the  state.  WHio.  then,  shall  assume  the  power 
of  the  people  and  call  this  magistrate  to  an  account 
for  that  which  he  has  done  in  discharge  of  his  con- 
stitutional duties?  If  he  is  not  the  judge  of  luhen 
and  Jwzv  these  duties  are  to  be  performed,  who  is? 
Where  does  the  Court  of  Quarter  Sessions,  or  any 

137 


OUSTING    CIVIL    AUTHORITIES. 

Other  court,  get  the  power  to  call  this  man  before 
it,  and  compel  him  to  answer  for  the  manner  in 
which  he  has  discharged  his  constitutional  functions 
as  executor  of  the  laws  and  commander-in-chief  of 
the  militia  of  the  commonwealth?  *  *  *  We 
had  better,  at  the  outstart.  recognize  the  fact  that 
the  executive  department  is  a  co-ordinate  branch  of 
the  government,  with  power  to  judge  what  should 
or  sliould  not  he  done,  ivithin  its  own  department, 
*  *  *  and  that  within  the  exercise  of  these  con- 
stitutional powers,  the  courts  have  no  more  right  to 
interfere  than  has  the  executive,  under  like  condi- 
tions, to  interfere  with  the  courts."      (4-) 

On  the  same  point  a  recent  declaration  of  the  su- 
preme court  of  Idaho  is,  in  part,  as  follows ; 

"It  is  no  argument  to  say  that  the  executive  was 
not  applied  to  by  any  cfuinty  officer  of  Shoshone 
county  to  proclaim  said  county  to  be  in  a  state  of 
insurrection,  and  for  this  reason  the  proclamation 
was  without  authority.  The  recitals  in  the  procla- 
mation show  the  existence  of  one  of  two  conditions, 
viz. :  That  the  county  officers  of  said  county,  whose 
duty  it  was  to  make  said  application,  were  either  in 
league  with  the  insurrectionists,  or  else,  through 
fear  of  the  latter,  said  officers  refrained  from  doing 
their    duty.     Under  the    circumstances,  it  was  the 


(4)     Appeal  of  Hartranft  et  al.,  85   Pa.  St.,  433, 
444-5. 

138 


OUSTING    CIVir,    AUTHORITIES. 

duty  of  the  executive  to  act  ivithont  any  application 
from  any  county  officer  of  Shoshone  county."     (5) 
The  constitutional  provisions  under  which  these 
two  declarations  of  law  were  made  are  those  com- 
monly found  throughout  the  union,  and  the  rules 
so  enunciated  are  not  affected  by  the  additional  con- 
stitutional provision,  often  found,  prescribing  that 
the  military  shall  be  in  strict  subordination  to  the 
civil  power.     Therefore  it  is  a  general  rule  that  the 
governors  of  the  states,  in  seeking  to  maintain  order 
within  their  respective  states,  have  greater  powers 
than  has   the  king  of  England  within  the  British 
Isles.     The  governor,  when  his  duty  requires  him 
to  act,  is  accountable  to  no  man  for  the  performance 
of  that  duty.     He  is  accountable  to  no  man  for  the 
reasonable  exercise  of  his  discretion.     Therefore,  as 
a  general  rule,  he  may  use  any  necessary  force  to 
prevent  a   threatened   violation   of  the   law  of  his 
state  and,  when  the  governor  acts  under  proper  con- 
stitutional authority,  neither  the  legislative  nor  the 
judicial  branch  of  the  government    may    prescribe 
rules  which  restrict  him  in  the  performance  of  his 
duties.     Neither  of  these  co-ordinate  branches  of 
the  ofovernment  should  seek  to  restrict  the  execu- 
tive  branch,  for  it  is  their  duty  to  aid,  in  every  way 
possible,  in  enforcing  the  laws  which  they  proclaim. 
If  this  were  not  true,  then  we  would  have  the  mon- 


(5)     In  re  Boyle,  57  Pac,  706-7. 

139 


OUSTING    CIVIL    AUTHORITIES. 

strous  condition  of  a  law-abiding  citizen  being  pun- 
ished for  obeying  the  very  law  which  was  laid  down 
by  the  authority  which  afterwards  administered  the 
punishment. 

129.  Delegation  of  Powers  to  Military 
Commanders.  When  the  chief  executive  of  the 
state  has  decided  to  oust  civil  authorities,  or  replace 
them,  or  act  independently  of  them,  he  issues  specific 
orders  whereby  a  military  officer  is  required  to  take 
charge  of  the  situation  and  use  the  necessary  force 
to  put  down  the  insurrection.  These  orders,  re- 
ceived from  time  to  time  from  the  governor,  con- 
stitute all  the  authority  which  the  military  com- 
mander has  in  the  premises.  He  will  therefore  con- 
fine himself  to  a  strict  adherence  to  his  orders  and 
when  any  doubt  arises  will  request  further  direc- 
tions. 

130.  Proclaiming  Martial  Law.  Experience 
has  shown  that  a  proclamation  is,  in  some  instances, 
of  great  benefit  in  subduing  domestic  disturbances. 
The  president  of  the  United  States  can  not  act,  un- 
der the  laws  set  out  in  section  forty-two,  without 
first  issuing  the  proclamation  there  prescribed.  The 
statutes  of  some  of  the  newer  states  have  followed 
the  federal  plan  and  prescribed  that  the  governor 
shall  issue  a  proclamation  before  using  force  to  sub- 
due an  insurrection.  But  it  has  been  shown  that 
in  extreme  emergencies  the  governor  may  dispense 

140 


OUSTING    CIML    AUTHORITIES. 

with  this  formality.  (G)  The  matter  of  issuing  a 
proclamation  is  probably  within  the  discretion  of 
the  governor  and  he  may  cause  one  to  be  issued 
whenever  he  determines  that  good  wfll  result  there- 
from. 

When  such  proclamation  is  issued  by  the  gov- 
ernor it  is,  in  effect,  the  establishment  of  at  least 
qualified  martial  law  in  all  cases  where  the  gov- 
ernor is  not  acting  strictly  in  aid  of  the  minor  civil 
authorities.  Such  proclamations  will  be  discussed 
in  the  next  chapter. 

131.  Establishing  Martial  Law  Without 
Proclamation.  It  has  heretofore  been  shown  that 
the  governor  may  establish  a  certain  degree  of  mar- 
tial law  without  the  issuance  of  a  preliminary  proc- 
lamation. (7)  The  governor's  order  requiring 
troops  to  act  independently  of  civil  authorities  in 
enforcing  the  laws,  alone  establishes  martial  law  : 
but  as  all  acts  of  this  nature  are  subsequently  re- 
viewed and  discussed,  often  by  persons  ignorant  of 
the  facts,  it  is  usually  advisable  to  publish,  by  proc- 
lamation, the  facts  which  have  required  the  use  of 
troops  and  martial  law.  Such  publication  will,  in 
certain  instances,  save  future  adverse  criticism  of 
the  governor's  actions  and  prevent  the  creation  of 
political  thunder  by  adverse  factions.     Any  import- 


(6)  See  Sec.  122. 

(7)  See  Sec.  122. 

1-41 


OUSTING    CIVIL    AUTHORITIES. 

ant  action  by  a  governor,  if  taken  secretly,  is  likely 
to  result  in  future  discussions  which  are  sometimes 
in  bad  taste  and  may  cause  embarrassment.  Such 
discussions  put  the  governor  on  the  defensive  and, 
while  no  chief  executive  can  be  required  to  defend 
his  law^ful  actions,  these  discussions  furnish  a  dis- 
agreeable incident  which  is  subversive  of  that  cor- 
dial co-operation  which  should  always  exist  between 
a  governor  and  the  people.  There  are  times  when  a 
proclamation  is  not  possible,  there  are  other  times 
when  it  is  not  advisable;  but,  generally,  it  may  be 
employed  to  advantage. 

132.  Ouster  by  Arrest.  To  oust  means,  le- 
gally, to  put  out;  to  turn  out  or  eject;  to  dispossess. 
(8) 

\\'hen  proof  is  certain  that  a  civil  officer  has  cast 
his  lot  with  insurgents,  or  has  been  guilty  of  riot, 
in  violation  of  law,  the  military  commander  may  be 
ordered  to  put  such  delinquent  in  arrest.      (0) 

A  rioter  has  been  legally  defined  as  one  who  in- 
flames people's  minds,  and  induces  them  by  violent 
means  to  accomplish  an  illegal  object,  and  it  is  not 
necessary  that  he  should  take  any  part  in  the  riot, 
but  it  is  sufficient  if  he  sets  in  motion  the  physical 


(8)  3  Bl.  Com.,  167-173,  201,  202;  Burrill's  Law 
Diet. 

(9)  3  Cyc,  874;  43  Cent.  Dig.,  cc.  3913-3916. 

142 


OUSTING    CIVIL    AUTHORITIES. 


power,  of  another,  which  results  in  a  riot.      flO) 

If  these  same  acts  were  performed  in  furtherance 

of  an  insurrection,  the  dehnquent  would  be  an  in- 
surgent. 

As,  however,  a  civil  officer  apparently  trying  to 
'  properly  perform  his  duty  cannot  be  arrested,  the 
occasions  when  it  will  be  necessary  to  arrest  him 
in  order  to  oust  will  be  extremely  rare  and  on  these 
occasions  the  governor  might  simply  treat  the  civil 
officer  as  a  lawless  private  person.  He  will  then 
remove  him  and  may  at  once  appoint  a  successor. 
(11) 

133.  Ouster  by  Independent  Action.  The 
plan  commonly  adopted  by  a  governor  in  suppress- 
ing insurrection  is,  either  with  or  without  public 
proclamation,  to  issue  specific  orders  to  a  military 
commander  to  restore  order  and  enforce  the  laws 
in  a  described  district.  Thereafter  the  military  com- 
mander establishes  a  military  district  which  terri- 
torially covers  the  one  described  in  the  governor's 
order.  Either  the  governor  or  military  commander 
then  issues  whatever  orders  or  proclamations  are 
necessary  to  establish  and  maintain  the  requisite  de- 
gree of  martial  law.      (12) 


(10)  1  Spies  V.  People,  12  N.  E.,  865,  961;  133 
111.,  1 ;  3  Am.  St.  Rep.,  320. 

(11)  Birkhimer,  Alil.  Govt.  &  Mar.  Law,  196. 

(12)  See  succeeding  chapters. 


113 


OUSTING    CIVIL    AUTHORITIES. 

lo4.  Disarming  Authorities.  Immediately 
upon  assuming-  control  the  military  commander 
may,  if  the  emergency  requires,  issue  an  order  re- 
quiring all  tire  arms  to  be  deposited  with  the  mili- 
tary at  a  certain  place.  He  may  also  issue  an  order 
forbidding  the  sale  or  importation  of  hre  arms  and 
deadly  weapons.  The  orders  relative  lo  fire  arms 
will  necessarily  be  proclamations  because  of  their 
public  character.  In  these  orders  the  military  com- 
mander may  specify  that  all  civil  ofihcers,  consta- 
bles, sheriffs,  marshals,  and  other  peace-officers  shall 
deposit  their  arms  until  they  obtain  permits  for  their 
use.  These  permits  will  then  be  issued  in  the  discre- 
tion of  the  military  commander. 

135.  Reinstating  Civil  Authorities.  As 
the  insurrection  is  gradually  suppressed,  orders 
may  be  issued  from  time  to  time  reducing  the  first 
degree  of  martial  law  established,  and  gradually  re- 
instating the  civil  officers,  or  their  successors,  t(; 
the  full  exercise  of  their  proper  functions.  When 
order  is  completely  restored  a  proclamation  to  thai 
effect  will  sometimes  be  advantageous.  This  proc- 
lamation may  be  in  the  form  of  a  military  general 
order  requiring  the  military  commander  to  turn  the 
government  over  to  the  proper  civil  officers. 

136.  Establishment  of  Military  Commis- 
sions. The  authority  to  appoint  martial  law  courts 
and  approve  their  sentences,  during  the  civil  war, 

144 


OUSTIXG    CIVIL    AUTriORITIES. 

rested  only  with  the  commanding  general.  (13) 
This  power  might  be  exercised  by  military  com- 
manders of  districts,  in  state  service  during  insur- 
rection, but  the  better  plan  would  be  to  create  such 
commission  by  order  of  the  commander-in-chief. 
No  such  commission  will  act  or  be  created,  unless 
the  civil  courts  have  ceased  to  properly  perform  their 
functions.  As  the  rules  governing  the  procedure  of 
courts-martial  are  nearly  always  adopted  for  the 
procedure  of  military  commissions,  a  general  court- 
martial  may  be  ordered  and  this  same  general  court 
(or  certain  of  its  members)  (14)  may.  by  order,  be 
given  authority  to  act  as  a  military  commission.  In 
this  way  it  would  apply  the  well  known  rules  of 
military  law  in  the  trial  of  accused  members  of  the 
military  forces  and  camp  followers.  It  would  also, 
in  the  trial  of  all  other  persons,  apply  the  laws  of 
the  land,  or,  failing  these,  the  custom  of  war  in  like 
cases.  Where  any  of  the  civil  courts  can  be  induced 
to  act,  a  system  of  co-operation  will  be  arranged. 

137.  Jurisdiction  of  Military  Commissions. 
As  to  the  jurisdiction  exercised  by  military  commis- 
sions it  has  been  said  that : 


(13)  Birkhimer,  Mil.  Gov.  &  Mar.  Law,  527;  4 
Wallace,  p.  13. 

(14)  Custom  has  fixed  the  minimum  number, 
composing  a  military  commission,  at  three.  Davis 
Mil.  Law,  p.  309. 

146 


OUSTING    CIVIL    AUTHORITIES. 

"Military  commissions,  as  a  rule,  should 
be  resorted  to  for  cases  which  cannot  be 
tried  by  courts-martial  or  by  the  proper 
civil  tribunal.     They  are,  in  other  words, 
tribunals  of  necessity,    organized  for  the 
investigation  and  punishment  of  offences 
which    would    otherwise  go  unpunished." 
(15) 
As  to  the  vadidity  of  the  decisions  of  this  com- 
mission, the  general  sentiment  seems  to  be  as  fol- 
lows : 

"Nor  is  there  perceived  any  ground  up- 
on  which     can   be  based   a    well-founded 
claim    that    the    decisions    of    martial-law 
tribunals,  proceeding  within  the  sphere  of 
their  jurisdiction,  are  less  determinate  in 
character  than  are  those  of  the  ordinary 
courts-martial."      (16) 
The   decisions   of   these  commissions   have   been 
upheld  by  the  supreme  court  of  the  United  States 
where    the    commission    had    been    properly    estab- 
lished.     (17)      Where  a  governor  declares  a  cer- 


(15)  Birkhimer,  Mil.  Gov.  &  Mar.  Law,  528;  R. 
R.  S.  I.,  Vol.  8,  p.  822. 

(16)  lb.,  529. 

(17)  Mechs.  &  Traders  Bank  v.  Union  Bk.,  22 
Wallace,  27(5 ;  Texas  v.  White,  7  Wallace,  400 ;  Hand- 
lin  v.  WickhfTe.  12  Id.,  173;  Rudedge  v.  Fogg.  3 
Cold.,  554. 

146 


OUSTING    CIVIL    AUTHORITIES. 

tain  district  in  insurrection  and  establishes  absolute 
martial  law,  and  military  commissions  under  it,  and 
civil  courts  cannot  enforce  their  process  because  of 
the  disturbance;  it  would,  afterward,  be  very  unrea- 
sonable for  these  same  civil  courts  to  declare  that, 
because  their  powers  were  dormant,  no  other  lawful 
powers  had  been  exercised. 

138.  Invoking  Federal  Aid.  When  the  chief 
executive  of  the  state  finds  that  an  insurrection, 
therein,  is  beyond  his  control  and  beyond  the  con- 
trol of  his  state  military  forces,  it  is  his  duty,  under 
Section  5297  of  the  United  States  Revised  Statutes, 
which  is  set  forth  in  section  forty-two  of  this  work, 
to  apply  to  the  president  of  the  United  States  for 
federal  aid.  The  manner  of  making  this  application 
is  indicated  in  section  forty-three. 

139.  Control  of  Federal  Troops.  The  fed- 
eral statutes  set  out  in  section  forty-two  authorize 
the  president  of  the  United  States  to  use  troops  for 
two  distinct  purposes,  namely: 

First.  He  may  use  troops  without  request,  even 
against  the  protest  of  the  state  authorities,  in  order 
to  carry  out  the  guarantees  of  the  federal  constitu- 
tion. 

Second.  He  may  use  troops,  when  requested  by 
the  legislature  or  governor  of  a  state,  in  co-opera- 
tion with  the  civil  authorities  of  that  state  in  sup- 
pressing insurrections. 

147 


OUSTING    CI\IL    AUTHORITIES. 

As  to  the  first  of  these  uses,  the  president's  con- 
trol is  absolute.     It  has  been  defined  as  follows : 

"When  the  President    proceeds  to  use 
the  military  power  of  the  nation  for  the 
objects    mentioned,    he    does    it    indepen- 
dently of  state  authorities.     When  neces- 
sary, he  moves  the  troops  to  the  threatened 
district.     It  may  be  against  the  protests  of 
the  state  authorities.     He  uses  the  requis- 
ite force  to  sustain  the  law,  suppress  rebel- 
lion,  or  to  repel   invasion.     The  law   in- 
trusts to  his  judgment  the  determination 
of  the  question  how  much  force  the  occa- 
sion demands.    He  is  expected  to  meet  the 
crisis.     He  takes  his  measures  accordingly, 
and  if  the  condition  of  affairs  be  such  as 
to  justify  the  enforcement  of  martial  law, 
it  will  be  his  duty  to  enforce  it."      (18) 
As  to  the  second  of  these  uses  the  practice  has 
been,  where  the  governor  has  invoked  federal  aid, 
for  federal  troops  to  co-operate  with  either  the  state 
civil   authorities  or   state   troops   or  both ;   but   the 
same  thing  can  be  said  of  this  situation  as  of  the 
situations  indicated  in  chapter  nine,  namely: 

Where  the  governor  is  aiding  civil  authorities  he 
is  the  chief  civil    authority,   as   well   as   the  com- 


(18)     Birkhimer  Mil.  Gov.  &  Mar.   Law,  p.  460; 
7  Howard,  p.  1 ;  4  Wallace,  p.  2 ;  21  Indiana,  p.  370. 

148 


OUSTING    CIML    AUTHORITIES. 

in^nder-in-chief,  and  his  orders  are  superior  to  all 
others.  Where  the  president  is  co-operating  with 
civil  authorities  he  is  the  chief  civil  authority  as  well 
as  commander-in-chief  of  the  federal  forces.  There- 
fore the  president's  orders  are  superior  to  all  others. 
If  the  president  chooses  to  order  his  military  officer 
to  co-operate  with  state  troops  in  executing  the  will 
of  the  governor;  then  there  is  but  one  head  to  the 
force  which  is  engaged  in  suppressing  a  state  in- 
surrection. If  the  federal  military  officer  is  directed 
to  act  independently  of  the  state  forces:  then  there 
may  be  two  heads  to  the  forces  which  are  working 
for  law  and  order  and,  while  the  situation  may  be- 
come delicate,  there  is  no  necessity  for  actual  fric- 
tion where  co-operation  is  executed  with  judgment 
and  courtesy.  In  the  Idaho  disturbances  of  1892,  the 
governor  invoked  federal  aid  and  the  president  is- 
sued his  proclamation.  Meanwhile  both  federal  and 
state  troops  had  been  moved  to  the  scene  of  action. 
The  commander  of  the  latter  represented  the  go\^- 
ernor  in  the  field.  He  exercised  martial  law  powers 
fully,  removing  the  sheriff  and  appointing  a  suc- 
cessor. No  formal  proclamation  instituting  martial 
law  was  made  other  than  the  preliminary  one  of  the 
governor,  but  martial  law  was  fully  exercised  until 
peace  and  order  were  restored.  The  exercise  of 
martial   law   was  by   state  not   federal   authorities. 

149 


OUSTING    CIVIL    AUTHORITIES. 

The  federal  forces  upheld  the  state  authorities  by 
their  presence  and  co-operation.      (19) 


(19)  Fed.  Aid  in  Dom.  Dis.,  W.  D.,  ^33.  On  this 
occasion  President  Harrison  ordered  the  secretary  of 
war  to :  "At  once  send  to  the  scene  of  disorder  an 
adequate  force  of  troops  from  the  nearest  station,  un- 
der an  officer  of  rank  and  discretion,  with  orders  to 
co-operate  with  the  civil  authorities  in  preserving  the 
fcace  and  protecting  life  and  property."  Federal 
troops  can  not  be  directed  to  act  under  the  orders  of 
any  civil  officer.     A.  R.,  1904,  par.  487. 


150 


CHAPTER  TWELVE. 


PROCLAMATIONS. 


140.  Statutory  Requirements.  The  federal 
statutes,  shown  in  section  forty-two.  are  manda- 
tory, and  probably  require  the  president  to  issue  a 
proclamation  before  using  federal  troops,  either  in 
co-operation  with  civil  authorities  or  acting  inde- 
pendently in  suppressing  insurrection.  Similar  stat- 
utes, which  exist  in  some  of  the  states  relative  to 
l)reliminary  proclamations,  need  not  be  followed  by 
the  state  executive  where  adherence  to  such  statute 
would  cause  dangerous  delays.  (1)  But  if  the 
constitutional  authority  under  which  the  governor 
acts  indicates  that  a  proclamation  should  be  issued 
before  using  force,  such  constitutional  requirement 
is  mandatory  and  cannot  be  ignored. 

141.  Form  of  Federal  Proclamation.  A 
federal  proclamation  used  by  President  Grant  in 
1874  was  immediately  effective  in  removing  the 
imminent  danger  of  a  civil  war  in  Arkansas.  The 
difficulties  arose,  as  in  the  Dorr  rebellion,  out  of  a 
contest  between  two  persons  for  the  governorship 
of  that  state.     When  it  had  been  demonstrated  to 


(1)     See  Sees.  132,  130. 

101 


PROCLAMATIONS. 

tlie  president  that  intervention  by  him  was  abso- 
lutely necessary,  he  recognized  Baxter  as  the  gov- 
ernor in  the  following  proclamation : 

•'BY    THE    PRESIDENT    OF    THE    UNITED 
STATES  OF  AMERICA. 

A  PROCLAMATION. 
Whereas,  certain  turbulent  and  disor- 
derly persons,  pretending  that  Elisha  Bax- 
ter, the  present  executive  of  Arkansas,  was 
not  elected,  have  combined  together  with 
force  and  arms  to  resist  his  authority  as 
such  executive  and  other  authorities  of 
said  State;  and 

Whereas,  said  Elisha  Baxter  has  been 
declared  duly  elected  by  the  general  as- 
sembly of  said  State  as  provided  in  the 
Constitution  thereof,  and  has  for  a  long 
period  been  exercising  the  functions  of 
said  office,  into  which  he  was  inducted  ac- 
cording to  the  constitution  and  laws  of 
said  State,  and  ought  by  its  citizens  to  be 
considered  as  the  lawful  executive  thereof, 
and 

Whereas,  it  is  provided  in  the  Constitu- 
tion of  the  United  States  that  the  United 
States  shall  protect  every  State  in  the 
Union,  on  application  of  the  legislature. 
or  of  the  executive  when   the  legislature 

152 


PROCLAMATIONS. 

can  not  be  convened,  against  domestic  vio- 
lence; and 

Whereas,  said  Elisha  Baxter,  under 
Section  4  of  Article  IV  of  the  Constitu- 
tion of  the  United  States  and  the  laws 
passed  in  pursuance  thereof,  has  hereto- 
fore made  appHcation  to  me  to  protect  said 
State  and  the  citizens  thereof  against  do- 
mestic violence;  and 

Whereas,  the  general  assembly  of  saitl 
State  was  convened  in  extra  session  at 
the  capital  thereof  on  the  11th  instant, 
pursuant  to  a  call  made  by  said  Elisha 
Baxter,  and  both  houses  thereof  ha\-e 
passed  a  joint  resolution  also  applying  to 
me  to  protect  the  State  against  domestic 
violence;  and" 

(Here  followed  quotations  from  the  provisions  of 
the  statutes  set  out  in  section  forty-two  of  this 
work. ) 

"Now,  therefore,  I,  Ulysses  S.  Grant, 
President  of  the  United  States,  do  hereby 
make  proclamation  and  command  all  tur- 
bulent and  disorderly  persons  to  disperse 
and  retire  peaceably  to  their  respective 
abodes  within  ten  days  from  this  date,  and 
hereafter  to  submit  themselves  to  the  law- 
ful  authority   of   said   executive  and    the 

153 


PROCLAMATIONS. 

other  constituted  authorities  of  said  State ; 
and  I  invoke  the  aid  and  co-operation  of 
all  good  citizens  thereof  to  uphold  law  and 
preserve  public  peace. 

In  witness  whereof,  I  have  hereunto  set 
my  hand  and  caused  the  seal  of  the  United 
States  to  be  affixed. 

Done  at  the  city  of  Washington,  this 
15th  day  of  May,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy- 
four,  and  of  the  Independence  of  the 
United  States  the  ninety-eighth. 
(seal.)  U.  S.  grant. 

By  the  President : 

HAMILTON  FISH,  Secretary  of  State."  (2) 
The  foregoing  proclamation  was  necessarily  long 
for  the  reason  that  the  president  was  compelled  to 
decide  which  of  two  state  governments  was  the  legal 
one.  If  this  requirement  had  not  existed,  the  pre- 
liminary statement  of  facts  could  have  been  drawn 
in  a  single  paragraph,  as  was  done  by  President 
Hayes  in  1877,  as  follows: 

"And  whereas,  the  governor  of  the 
State  of  Pennsylvania  has  represented  tliat 
domestic  violence  exists  in  said  State 
\\hich  the  authorities  of  said  State  are  un- 
able to  suppress."      (3) 

(2)  Fed.  Aid  in  Dom.  Dis.  War  Dept.,  p.  176. 

(3)  lb.,  p.  196. 

154 


PROCLAMATIONS. 

The  foregoing  forms  of  federal  proclamations 
are  here  inserted  to  indicate  the  course  that  a  chief 
executive  of  the  federal  government  usually  takes 
in  these  emergencies. 

142.     Form  of  a  State    Proclamation.     The 
governor  of  Colorado  recently  issued  the  following 
proclamation : 
"State  of  Colorado, 
Executive  Chamber,  Denver. 

PROCLAMATION. 
Whereas,  There  exists  in  Las  Animas 
county.  State  of  Colorado,  a  certain  class 
of  individuals  who  are  fully  armed  and 
are  acting  together,  resisting  the  laws  of 
this  State  and  offering  violence  to  citizens 
and  property  located  in  said  Las  Animas 
county;  and 

Whereas,  At  divers  and  sundry  times 
various  crimes  have  been  committed  in 
Las  Animas  county  by  said  individuals,  or 
by  and  with  the  aid  and  under  the  direc- 
tion of  said  vicious  and  lawless  persons; 
and 

\Vhereas,  From  time  to  time  attempts 
have  been  made  to  destroy  property  in 
said  county  by  the  use  of  dynamite  or 
other  explosives,  which  would  have  re- 
sulted in  the  destruction  of  a  vast  amount 

155 


PROCLAMATIONS. 

of  property  and  considerable  loss  of  life; 
and 

Whereas,  I'hreats,  intimidations  and 
violence  are  daily  threatened  and  fre- 
quently resorted  to  by  said  lawless  class 
of  individuals;  and 

Whereas,  The  civil  authorities  of  said 
Las  Animas  county  have  notified  me  that 
there  is  a  great  body  of  unemployed  men 
in  said  Las  Animas  county,  who  are  arm- 
ing themselves  with  deadly  weapons  in 
apparent  anticipation  of  an  open  and  vio- 
lent conflict,  without  any  respect  for  our 
government  or  its  Constitution  and  laws; 
and 

Whereas,  it  is  estimated  by  the  sheriff 
of  said  Las  Animas  county  that  not  less 
than  fifteen  hundred  men  are  fully  equip- 
ped with  shot  guns,  rifles,  pistols  and 
deadly  weapons,  thoroughly  instructed  in 
their  use,  and  ready  for  prompt  action ; 
and 

Whereas,  such  outbreak  of  violence,  in 
opposition  to  the  Constitution  and  laws  of 
this  State  is  imminent,  which  would  in- 
volve serious  destruction  of  property  and 
the  loss  of  life  to  many  innocent  citizens; 
and 

156 


PROCLAMATIONS. 

Whereas,  by  reason  of  such  lawlessness, 
acts  of  violence  and  disturbances,  the  civil 
authorities  are  unable  to  cope  with  the 
situation ; 

Now,  therefore,  I,  James  H.  Peabody, 
governor  and  commander-in-chief  of  the 
military  forces,  by  virtue  of  the  power  and 
authority  in  me  vested,  do  hereby  proclaim 
and  declare  the  said  county  of  Las  Ani- 
mas, in  the  State  of  Colorado,  to  be  in  a 
state  of  insurrection  and  rebellion. 

In  testimony  whereof,  I  have  hereunto 
set  my  hand  and  caused  to  be  affixed  the 
great  seal  of  the  State,  in  the  city  of  Den- 
ver, the  State  capital,  this  twenty-second 
dav  of  March,  A.  D.  one  thousand  nine 
hundred  and  four. 
(seal)  (Signed)  JAMES  H.  PEABODY. 

By  the  Governor,  Attest : 
(Signed)  JAMES  COWIE, 
Secretary  of  State."      (4) 

The  foregoing  proclamation  does  not  follow  the 
federal  plan  in  warning  the  insurgents  to  disperse 
by  a  given  time.  It  was  probably  the  governor's 
understanding  that  such  a  warning  would  not  be 
heeded ;  but  where  such  warning  may  be  of  benefit 


(4)     Biennial   Report,  Adjutant  General  of  Colo- 
rado, l<^03-4,  p.  17. 

157 


TROCLAMATIONS. 

it  is  advisable  to  incorporate  it  in  the  proclamation. 
The  use  of  the  word  "rebellion"  is  possibly  open  to 
objection. 

143.  Recitals  in  Proclamations.  The  reci- 
tal of  facts  in  a  proclamation  shows  the  conditions 
which  caused  it  to  be  issued.  These  facts  should 
be  ascertained  as  carefully  as  time  permits.  The 
officer  believes  the  conditions  exist  and  the  discre- 
tion he  thereupon  exercises  cannot  be  questioned. 
With  reference  to  this  principle  the  supreme  court 
of  Idaho  said : 

"The  truth  of  recitals  of  alleged  facts 
in  a  proclamation  issued  by  the  governor, 
proclaiming  a  certain  county  in  the  State 
to  be  in  a  state  of  insurrection  and  rebel- 
lion, will  not  be  inquired  into  or  reviewed 
on  application  for  a  writ  of  habeas 
coriDus."      (5) 

144.  Military  District  Proclamation. 
Where  a  certain  portion  of  the  state  is  in  insurrec- 
tion, as  indicated  in  section  one  hundred  and  thirty- 
three,  a  proclamation  may  be  issued  after  the  mili- 
tary force  is  on  the  ground,  from  the  military  head- 
quarters of  the  district.  A  form  for  such  a  proc- 
lamation is  submitted: 

headquarters. 
County  Military  District 

(5)     In  re  Bovle  (Sup.  Ct.  Idaho,  1899),  57  Pac, 

158 


PROCLAMATIONS. 

,  Ohio,  February  11,  190(5. 

J.  This  county  is  now  in  possession  of  the  mili- 
tary forces  of  the  State  of  Ohio,  who  have  come  to 
restore  peace  and  order  and  to  enforce  the  laws  of 
the  State,  under  authority  and  by  command  of  the 
governor.  The  colonel  commanding  said  military 
forces  therefore  makes  known  and  proclaims  the 
objects  and  purposes  of  the  State  in  thus  taking  pos- 
session of  the county  military  dis- 
trict, and  the  rules  and  regulations  by  which  the 
laws  of  the  United  States  and  the  State  of  Ohio 
will  be  for  the  present,  and  during  a  state  of  insur- 
rection, maintained ;  for  the  guidance  of  all  good 
citizens,  as  well  as  others  who  may  have  been  in 
insurrection  against  its  authority. 

2.  There  exists  in  (here  state  conditions  show- 
ing insurrection).  The  Military  District  Com- 
mander, therefore,  will  cause  the  county  to  be  gov- 
erned, until  the  restoration  of  civil  authority  and 
his  further  orders,  by  military  authority.  This 
measure  is  deemed  necessary  because  of  the  facts 
previously  recited,  and  other  facts. 

3.  (Provision  for  surrender  of  arms,  see  section 
134). 

4.  The  persons  and  property  of  all  well  dis- 
posed citizens  will  be  protected  and  safeguards  will 
be  furnished  wherever  necessary  and  possible. 

5.  All  persons  who  have  heretofore  engaged  in 

159 


PROCr.AMATIONS. 

or  supported  the  insurrection,  or  given  the  insur- 
gents aid  and  comfort,  who  shall  return  to  peaceful 
occupations  and  preserve  quiet  and  order,  holding  no 
further  communications  of  any  kind  with  a  law- 
less person  or  persons,  will  not  be  disturbed  in  per- 
son or  property  by  the  military  forces  except  where 
the  exigencies  of  the  public  service  may  render  it 
necessar}^  All  rights  of  property  of  whatever  kind 
will  be  held  inviolate,  subject  to  law.  All  persons 
in  the  district  are  required  to  pursue  their  usual  vo- 
cations. All  shops  and  places  of  business  (except 
those  hereinafter  mentioned)  are  to  be  kept  open  in 
the  usual  manner,  as  in  times  of  peace. 

6.  All  saloons  and  places  where  intoxicating 
liquors  are  sold  at  retail  as  a  beverage  will  be  closed 
and  kept  closed  until  further  order. 

7.  Violations  of  state  and  federal  law,  disorders 
and  disturbances  of  the  peace,  and  interferences  with 
the  military  forces,  will  be  referred  to  a  proper  au- 
thority for  trial  and  punishment.  Misdemeanors 
v.'ill  be  subject  to  the  civil  authority,  if  it  chooses  to 
act.     Civil  causes  will  await  the  ordinary  tribunals. 

8.  No  publication,  either  by  newspaper,  pamph- 
let or  handbill,  reflecting  in  any  way  upon  the 
United  States,  or  the  State  of  Ohio,  or  their  officers, 
or  tending  to  influence  the  public  mind  against  them, 
will  be  tolerated.     Comments  upon  the  action  of  the 

160 


PROCLAMATIONS. 

military  forces,  or  of  the  insurgents,  will  not  be  per- 
mitted. 

9.  All  good  citizens  will  render  aid  in  restoring 
civil  government,  etc. 

10.  All  assemblages  of  persons  in  streets  or 
highways,  either  by  day  or  night,  tend  to  disorder, 
and  are  forbidden. 

11.  Vagrancy  will  not  be  tolerated. 

12.  It  is  hoped  that  martial  law,  hereby  estab- 
lished, will  be  mild  and  gentle  in  its  enforcement ; 
but  it  will  be  vigorously  exercised  when  occasion 
demands. 

By  order  of 


Adjutant  of  the  District. 

The  foregoing  outline  is  partly  taken  from  a  re- 
cent Colorado  proclamation.  (6)  Some  of  the 
suggestions  are  of  value  only  where  no  co-operation 
of  the  civil  authorities  can  be  relied  on. 

145.  Sheriff's  Proclamation.  In  the  United 
States  there  is  probably  no  statute  of  which  the  an- 
cient English  riot  act  is  an  exact  prototype.     It  pro- 


(6)     Biennial   Report   Adjutant   General  of   Colo- 
rado, 1903-4,  p.  114,  115. 

161 


PROCLAMATIONS. 

vided  that  a  riotous  assembling  of  twelve  persons 
or  more,  not  dispersing  upon  proclamation,  consti- 
tutes high  treason  under  a  statute  of  Edward  the 
VI.  This  statute  was  many  times  changed  by  the 
English  parliament,  but  it  generally  provided  for  a 
proclamation  by  a  justice  of  the  peace,  sheriff,  under 
sheriff,  or  major.     (7) 

The  purpose  of  "reading  the  riot  act"  was  to  com- 
pel the  members  of  the  mob  to  disperse  or  declare 
themselves  rioters  by  persisting  in  riotous  acts  after 
the  proclamation  was  read. 

A  sheriff's  proclamation  of  the  present  day  may 
follow  the  old  English  practice  which  consisted  in 
reading  the  statutory  proclamation  commanding  the 
assembled  mob  to  disperse.  Such  a  proclamation 
should  follow  the  statutory  provisions,  relative  to 
riot,  of  the  state  in  which  it  is  read.  The  laws  of 
many  states  require  the  Riot  Act  to  be  read  to  a 
mob  before  overt  proceedings  against  it.      (8) 

146.  Special  Proclamations.  When  troops 
are  acting  in  the  aid  of  civil  authorities  all  procla- 
mations will  be  issued  by  the  civil  authorities. 

Where  martial  law  has  been  established,  special 
proclamations  may  be  issued  by  the  governor  or  by 
the  commander  of  a  military  district.     All  special 


(7)  4  Bl.  Com.,  143. 

(8)  Davis  Mil,  Law,  p.  327,  note;  but  see  Sees. 
122,  140. 

162 


PROCLAMATIONS. 

proclamations  are  supplemental  to  the  first  general 
one  and  may  refer  to  it  or  repeal  part  of  it. 

Special  proclamations  may  be  necessary  from 
time  to  time  and  are  often  advisable  in  directing 
the  restoration  of  peace  and  order.  They  may  be 
used  for  any  purpose  which  requires  the  publica- 
tion of  a  general  notice  to  civilians :  such  as  defin- 
ing certain  offenses,  reinstating  civil  courts  and 
civil  officers,  etc. 

147.  Forfeiture  of  Estate.  Under  the  old 
English  common  law  there  were  many  instances 
where  crimes  caused  forfeitures  of  the  estates  of  the 
offenders.  Most  law  writers  in  this  country  dis- 
claim any  such  liability  at  the  present  day;  but  there 
is  a  roundabout  method  of  forfeiture  in  some  of  the 
states  at  the  present  time.  To  illustrate :  there  are 
statutes  which  permit  persons  whose  property  is  de- 
stroyed by  a  mob  to  recover  from  the  county  or 
city  in  which  the  civil  government  was  lax  enough 
to  permit  the  destruction.  There  are  other  statutes 
which  provide  for  a  similar  recovery  when  a  pris- 
oner is  injured  or  killed  by  the  direct  attack  of  a 
mob.  In  most  of  these  statutes  the  county  or  mu- 
nicipality which  pays  these  damages  may  recover 
against  any  of  the  parties  composing  such  mob. 
Therefore,  by  this  circuitous  method,  a  person  may 
pay  a  heavy  penalty  because  of  his  presence  with  a 
mob  which  does  violence  to  persons  or  property. 

163 


PROCLAMATIONS. 

It  follows  therefore  that,  in  those  states  where 
such  Habihty  exists,  where  a  mob  is  partly  composed 
of  persons  of  property,  a  proclamation  warning 
them  of  their  liability  may  sometimes  prove  effica- 
cious. 

148.  Final  Proclamation.  When  the  neces- 
sity for  martial  law  no  longer  exists,  a  proclamation 
by  the  governor  or  military  district  commander  may 
be  issued  stating  that  the  conditions  theretofore  ex- 
isting have  changed,  that  peace  and  good  order  are 
restored  and  that  the  civil  authorities  are  able  and 
willing  to  control  the  situation,  perform  their  legal 
functions  and  enforce  the  law.  With  these  prem- 
ises this  final  proclamation  might  conclude  with  the 
statement  that  further  application  of  military  au- 
thority, under  the  general  martial  law  proclamation, 
is  suspended  and  that  the  troops  still  in  service  will 
thereafter  act  in  support  of,  and  in  subordination  to, 
the  legally  constituted  civil  authorities  of  the  dis- 
trict; and  that  certain  troops  will  remain  on  duty, 
to  enable  the  civil  authorities  to  enforce  obedience  to 
law  and  to  protect  life  and  property,  until  further 
orders.  Such  proclamation  should  conclude  by  a 
statement  of  the  exact  time  upon  which  it  becomes 
operative. 


164 


CHAPTER  THIRTEEN. 


CLOSING   SALOONS.     ORDER   AT   NIGHT. 


149.  Statutes  Relative  to  Closing  Saloons. 
In  some  states  there  are  statutes  requiring  the  mayor 
of  a  municipal  corporation  wherein  a  tumult  or  riot, 
or  apprehension  thereof,  exists,  to  issue  a  proclama- 
tion requiring  the  keepers  of  all  saloons,  or  places 
where  intoxicating  liquors  are  sold  at  retail  as  a 
beverage,  to  close  such  places  of  business  and  keep 
the  same  closed  until  further  orders.  The  enact- 
ment of  such  a  statute  is  a  part  of  the  police  power 
of  a  state,  and  the  provisions  of  the  statute  should 
be  faithfully  complied  with  by  civil  authorities  dur- 
ing domestic  disturbances. 

150.  Where  no  Statutes  Exist,  and  troops 
are  acting  in  aid  of  civil  authorities,  such  authori- 
ties may  use  discretion  as  to  closing  saloons.  It 
seems  to  be  almost  a  general  rule  that  saloons  are 
required,  by  law,  to  be  kept  closed  on  election  days. 
This  rule  arose  from  the  fact  that  many  election 
day  riots  traced  their  rise  to  overindulgence  in  in- 
toxicants by  the  participants.  The  statutes  just  re- 
ferred to  are  not  the  only  instance  where  our  gov- 
ernments have  recognized  the  fact  that  certain 
classes  of  a  community  are  sufficiently  erratic  with- 

165 


CLOSING    SALOONS,    &C. 

out  the  use  of  stimulants.  The  statutes  prohibiting 
the  sale  of  liquors  to  Indians  are  another  instance. 
It  is  probably  a  psychological  fact  that  men  who 
easily  lose  their  self  control  are,  under  stress  of  ex- 
citement, apt  to  resort  to  stimulants  which  further 
increase  their  mental  disorders.  It  therefore  fol- 
lows that,  where  sedatives  are  needed,  stimulants 
might  well  be  prohibited. 

151.  Military  Commander's  Duties.  In  act- 
ing in  aid  of  civil  authorities  a  military  commander 
cannot  enforce  statutes  unless  ordered  to  do  so  by 
the  civil  authorities.  In  this  kind  of  duty,  the  mili- 
tary commander  has  no  power  to  issue  a  proclama- 
tion closing  saloons.  Such  proclamation  must  be 
issued  by  the  civil  authorities,  unless  the  governor 
specifically  directs  the  military  commander  to  act  in- 
dependently of  civil  authorities. 

153.  Under  Martial  Law  a  military  com- 
mander may  often  have  full  discretion  as  to  police 
powers.  Under  these  he  may  close  saloons  or  place 
them  under  certain  regulations. 

But  where  the  statute  directs  the  civil  authorities 
to  close  saloons  during  a  riot,  the  military  com- 
mander, who  is  exercising  martial  law  powers, 
should  enforce  this  statute.  Where  no  such  statute 
exists  a  military  commander  may,  in  his  discretion, 
permit  saloons  to  remain  open  under  strict  regula- 
tions.    If  they  are  to  remain  open  a  part  of  the 

16G 


CLOSING    SALOONS,    &C. 

time  it  is  preferable  to  permit  them  to  do  business 
in  the  mornings  and  close  them  promptly  at  noon. 
The  reason  for  this  is  that  civilians,  after  a  day  of 
excitement,  seem  more  prone  to  resort  to  violence 
in  the  evenings  than  at  any  other  time.  Further- 
more, if  they  have  any  physical  need  for  stimulants, 
this  need  can  certainly  be  supplied  duriag  a  few 
hours  in  the  morning  and  General  Miner's  rule  that : 
"One  drink  a  day  is  enough  for  anybody,"  seems  to 
be  founded  on  pure  reason  and  sound  common 
sense. 

153.  Public  Meetings  at  Night,  are  a  fruit- 
ful source  of  tumult.  The  members  of  any  assem- 
bly may  be  swayed  by  oratory  or  an  appeal  to  the 
passions  of  certain  elements  in  the  crowd.  Most  of 
the  great  riots  have  been  started  at  public  meetings 
where  orators  of  anarchistic  proclivities  have  been 
allowed  to  hold  forth.  During  a  riot  a  so-called 
indignation  meeting  of  citizens  has  sometimes  been 
organized  and  is  nearly  always  productive  of  more 
or  less  mischief.  These  meetings  should  not  be  al- 
lowed to  take  place. 

154.  Theaters  and  Places  of  Amusement 
will,  under  ordinary  conditions,  be  permitted  to  do 
their  usual  business.  But,  if  necessary,  the  mana- 
gers of  these  places  may  be  instructed  that  no  senti- 
ments, antagonistic  to  the  restoration  of  peace  and 
order,  should  be  engendered  in  any  way  or  by  any 

167 


CLOSING    SALOONS,    &C. 

means.  If  this  mild  degree  of  censorship  is  resisted 
then  more  drastic  measures  could  be  adopted.  If 
necessary  the  places  could  be  closed. 

155.  Ministers.  Ordinarily  ministers  of  the 
gospel  do  great  good  in  quelling  disturbances. 
There  are  rare  instances,  however,  where  certain 
ministers  so  far  forget  their  proper  functions  as  to 
create  dangerous  public  sentiment  and  instigate  fac- 
tional strife  by  unguarded  utterances  from  the  pul- 
pit. Where  martial  law  is,  in  any  degree,  being 
exercised,  it  may  be  the  duty  of  the  proper  officer, 
either  civil  or  military,  to  mildly  indicate  to  the  of- 
fending parson  that  it  is  his  business  to  save  souls 
and  not  to  interfere  with  governmental  functions  at 
a  time  when  others  are  prohibited  from  such  inter- 
ference. A  minister  of  the  gospel  has  no  more  right 
to  increase  disorders  than  has  any  other  civilian. 
All  insurgents  should  look  alike  to  a  commander  ex- 
ercising martial  law. 

156.  Curfew.  It  will  occasionally  be  necessary 
for  civil  authorities  or  military  commanders  to  issue 
orders  requiring  all  inhabitants  to  remain  in  their 
homes  after  a  certain  hour  in  the  evening  unless 
abroad  with  a  permit.  Such  an  order,  in  the  larger 
towns  and  cities,  necessarily  interferes  with  the 
rights  of  the  citizens  to  assemble  at  clubs,  social 
gatherings  and  innocent  places  of  amusement;  un- 
less the  hour  for  clearing  the  streets  is  placed  late 

168 


CLOSING    SALOONS,    &C. 

enough  to  permit  attendance  at  these  places.  In 
almost  all  cases  where  troops  are  acting  in  the  re- 
storation of  peace  and  order,  it  is  probably  proper 
to  keep  the  streets  cleared  between  the  hours  of  11 
P.  M.  and  5  A.  M.  During  the  extreme  stages  of 
a  riot  or  insurrection  this  time,  for  a  few  days, 
might  be  extended  to  include  the  entire  night  sea- 
son. But  in  every  instance  it  would  be  the  duty  of 
the  civil  officer  or  military  commander  to  issue  per- 
mits to  law-abiding  citizens  whose  business  required 
them  to  be  abroad  at  prohibited  times. 

157.  Maintaining  Order  at  Night.  When 
it  has  become  generally  known  that  civilians  are 
prohibited  from  being  abroad,  during  certain  night 
hours,  without  a  permit,  all  persons  found  abroad 
without  permits  should  invariably  be  arrested,  taken 
to  guard  headquarters  and  there  examined.  In  this 
examination  it  will  develop  that  some  of  the  ar- 
rested persons  are  really  ignorant  of  the  rule.  In 
these  cases  ignorance  of  the  law  should  be  an  ex- 
cuse. 

Traveling  men  and  others  visiting  the  city  on 
business  ought  to  be  given  the  best  treatment  that 
the  circumstances  permit  and  should,  generally,  be 
permitted  to  travel  from  trains  to  hotels  with  the 
fewest  possible  restrictions.  Instructions  to  hotel 
managers  and  railway  agents  may  insure  their  co- 
operation and  result  in  arrangements  that  will  be 
satisfactory. 

169 


CHAPTER  FOURTEEN. 


FIRST  DISPOSITION  OF  TROOPS. 


158.  Marching  Through  City  Streets.  The 
necessity  for  detraining  at  proper  distances  from 
the  mob  has  been  spoken  of  in  section  eighty-two. 
In  many  instances  it  will  be  necessary  for  the  com- 
manding officer,  under  orders  of  civil  authorities, 
or  the  governor,  to  march  his  troops  to  the  scene 
of  disorder  through  a  section  of  a  town  or  city 
where  rioters  or  insurgents  may  be  attempting  to 
impede  the  progress  of  the  troops.  The  street  col- 
umn formation  may  be  used  advantageously,  but 
there  is  always  danger  of  shots  or  missiles  from  the 
roofs  of  buildings  where  miscreants,  of  the  bush- 
whacker type,  have  stationed  themselves.  To  resist 
attacks  of  this  nature  an  advance  guard  may  be 
employed.  It  could  consist  of  eight  or  more  picked 
men  with  an  officer;  a  civil  officer,  probably  the 
sheriff,  accompanying  the  commander  of  the  ad- 
vance guard,  except  where  troops  act  independently. 
If  the  advance  guard  consists  of  eight  enlisted  men, 
four  should  march  in  single  file  on  the  sidewalk  of 
each  side  of  the  street,  with  a  distance  of  from  six 
to  twenty  feet  between  the  men.     The  officer  and 

170 


DISPOSITION    OF    TROOPS. 

sheriff  may  proceed  in  the  middle  of  the  street  on 
line  with  the  two  rear  men.  The  first  right  hand 
man  will  look  down  area  ways,  into  stairways,  and 
other  places  of  concealment  on  his  side  of  the  street. 
The  other  three  right  hand  men  will  minutely  exam- 
ine the  house  tops  on  the  opposite  side  of  the  street. 
The  four  left  hand  men  will  perform  similar  duties, 
the  first  looking  into  halls  and  dark  entries  and  the 
other  three  watching  the  house  tops  on  the  right 
side  of  the  street.  Members  of  this  advance  guard 
should  have  orders  to  fire  in  time  to  prevent  the 
injury,  or  death  from  ambush,  of  the  sheriff  or  any 
member  of  the  military  force.  When  the  proximity 
of  a  mob  causes  the  advance  guard  to  close  in  on 
the  main  body,  the  men  who  composed  it  can  still 
perform  the  special  duty  of  watching  house  tops, 
etc.  A  rear  guard  may  be  similarly  formed  and 
employed. 

During  this  kind  of  a  march  flanking  parties,  on 
parallel  streets  or  alleys,  may  be  used. 

159.  Marching  on  Mob.  When  the  mob  is 
first  encountered,  unnecessary  hesitation  of  the 
troops  will  have  a  bad  effect.  Things  must  be  done 
sternly  and  promptly.  An  order  to  disperse,  before 
making  an  attack,  is  necessary,  when  civil  authori^ 
ties  are  in  control,  except  where  the  mob  is  in  the 
actual  perpetration  of  a  felony  when  first  encoun- 
tered.    Under  some  circumstances  it  may  be  advis- 

171 


DISPOSITION    OF    TROOPS. 

able  to  give  the  members  of  the  mob  two  or  three 
minutes  in  which  to  disperse.  Ordinarily  the  troops 
will  be  deployed  in  strong  lines  or  columns  the  full 
width  of  the  street  before  the  mob  is  encountered. 
These  lines  may  be  so  arranged  that  they  can  be  suc- 
cessively turned  so  as  to  force  the  mob  down  the 
various  highways  which  lead  from  the  place  of  as- 
sembly. A  bayonet  charge  will  be  used  unless  mem- 
bers of  the  mob  actually  open  fire  upon  the  troops. 
There  are  instances  where  the  men  can  advance  at 
port  arms  and  the  butt  end  of  a  musket  can  be 
swung  forward  when  occasion  demands.  This  blow 
is  similar  to  the  old  "Butt  to  front,"  and  can,  with 
practice,  be  made  to  resemble  the  kick  of  a  mule. 

160.  Preventing  a  Lynching.  Where  a  mob 
has  obtained  possession  of  a  prisoner  and  its  sole 
purpose  seems  to  be  to  take  the  life  of  the  captive, 
the  utmost  celerity  of  troops  is  demanded.  Too 
much  dash  cannot  be  put  into  such  an  affair.  If 
there  is  no  occasion  to  fire  the  officers  with  drawn 
swords  may  personally  aid  in  the  rush  for  rescue. 
At  such  a  time  the  control  of  the  troops  must  not  be 
forgotten  and  the  best  method  to  secure  this  is  to 
divide  them  into  an  attacking  force,  a  support  and  a 
reserve,  each  in  control  of  an  experienced  officer. 
I'he  attacking  force  will  rally  round  the  prisoner,  if 
rescued.  The  support  will  drive  away  the  mob. 
While  the  attacking  force  is  being  reformed,   the 

172 


DISPOSITION    OF    TROOPS. 

reserve  will  see  to  the  safety  of  the  whole  force. 
Prisoners  should  be  taken  as  indicated  in  the  next 
section. 

IGl.  Preventing  Destruction  of  Public 
Property.  This  is  best  done  by  sweeping  the  im- 
mediate vicinity  clear  of  all  civilians  except  firemen 
and  officers  who  are  acting  lawfully.  If  the  build- 
ings have  been  fired  no  civilian  wall  be  permitted  to 
approach  the  lines  of  hose  and  the  fire  will  be  fought 
as  well  as  circumstances  permit.  The  military  and 
civil  officers  may  at  once  take  as  many  prisoners  as 
possible  and  institute  a  rigid  examination  to  deter- 
mine the  responsibility  for  property  that  may  have 
been  damaged.  One  method  of  conducting  this  ex- 
amination is  indicated  in  section  seventy-seven.  All 
members  of  the  mob  will  probably  be  equally  liable, 
but  the  examination  may  be  conducted  to  fix  the 
material  facts,  names  of  members  of  the  mob  and 
the  proper  criminal  procedures. 

162.  Safeguards.  Strictly  speaking,  a  safe- 
guard is  a  warrant  of  security  given  by  an  army 
commander  to  certain  civilians  wdthin  his  jurisdic- 
tion. It  often  happens  during  a  riot  that  the  animus 
of  the  mob  is  directed  against  some  person  or  per- 
sons, and  these  are  in  greater  danger  than  other 
civilians.  On  such  occasions  either  a  civil  authority 
or  the  military  commander  furnishes  a  guard  for 
the  habitations  or  places  of  business  of  these  men- 

173 


DISPOSITION    OF    TROOPS. 

aced  persons.  This  guard,  properly  speaking,  is  a 
safeguard.  Under  the  Articles  of  War  the  penalty 
of  death  can  be  administered  to  a  soldier  who  forces 
a  safeguard  during  rebellion.  (1)  Where  there  is 
serious  danger  in  allowing  members  of  a  mob  or 
other  persons  to  approach  one  of  these  protected 
buildings,  a  dead  line  may  be  established  inside  of 
which  no  one  may  tresspass. 

During  a  riot  in  Pennsylvania,  a  guard  was  placed 
at  a  house  which  had  been  attacked  with  dynamite. 
Orders  were,  if  any  attempt  was  made  on  the  house, 
or  any  persons  approached  the  house  and  failed  to 
halt  when  directed,  to  shoot,  and  shoot  to  kill.  One 
of  the  sentries,  near  midnight,  discovered  a  man 
approaching  the  house,  and  called  upon  him  four 
times  to  halt;  the  man  disobeyed  the  order  and  the 
sentry  shot  and  killed  him.  Held  by  the  supreme 
court  that  these  facts  did  not  make  a  prima  facie 
case  for  holding  the  soldier  in  arrest  by  civil  au- 
thorities.    (2) 

Under  the  last  army  field  regulations,  safeguards 
are  not  specifically  provided  for  by  that  name.     (3) 


(1)  57th  Art.  of  War. 

(2)  Com.  v.  Shortall,  206  Pa.  St.,  165.  But  it 
should  be  also  noted  that  the  troops,  with  whom  this 
soldier  acted,  were  acting  independently  of  the  minor 
civil  authorities  by  the  specific  order  of  the  governor 
which  is  shown  in  full  at  Sec.  211. 

(3)  See  pars.  637,  708,  750  and  777  Field  Ser. 
Reg.,  1905. 

174 


DISPOSITION    OF    TROOPS. 

But  there  is  undoubted  necessity  for  their  use  in 
insurrections.  The  old  field  regulations  contained 
the  following  definition,  form  and  direction : 

"Safeguards  are  written  protections 
granted  to  persons  or  property,  by  the 
commanding  general  of  an  army  in  the 
field.  They  are  usually  given  to  protect 
hospitals,  museums,  establishments  of  re- 
ligion, charity,  or  education,  mills,  post- 
offices,  and  other  institutions  of  public 
benefit ;  also  to  individuals  whom  it  may  be 
to  the  interest  of  the  army  to  respect. 
FORM  OF  A  SAFEGUARD. 

By  order  of . 

A    safeguard     is    hereby    granted    to 

(A  B :  stating:  precisely  the  place, 

nature,  and  description  of  the  persons,  property, 
or  buildings). 

All  officers  and  soldiers  belonging  to  the 
army  of  the  United  States  are  therefore 
commanded  to  respect  this  safeguard,  and 
to    afford,     if    necessary,    protection    to 


(person,  family,  or  property  of 

as  the  case  may  be). 

Given  at  headquarters  of  the 

day  of  

A.  B 

Major-General  Commanding-in-Chief. 
CD.   , 

Assistant  Adjutant-General. 
175 


DISPOSITION    OF    TROOPS. 

The  Act  of  February  13,  1862,  will  be 

printed  or  written  across  the  face  of  the 

safeguard.     Safeguards  will  be  numbered 

and  registered."     (4) 

Instead  of  the  act  mentioned,   the  reverse    side 

could  bear  the  57th  Article  of  War  and  extracts 

from  orders  concerning  violations  of  safeguard  by 

civilians. 

163.  Barricades.  In  protecting  public  build- 
ings barricades  are  often  used  to  stop  rushes.  Where 
feasible  these  should  be  constructed  as  soon  as  pos- 
sible. Unless  the  buildings  stand  in  an  open  space 
barricades  will  be  thrown  across  adjacent  streets. 
Where  a  building,  standing  in  a  large  open  space,  is 
to  be  guarded,  it  is  advantageous  to  use  two  or  more 
strands  of  barbed  wire  just  outside  the  line  of 
guards.  This  will  impede  a  rush  and  it  has  a  pe- 
culiar moral  effect  in  helping  to  dispel  the  lonesome 
feeling  which  the  sentries  experience.  Street  bar- 
riers are  constructed  of  any  and  all  convenient  ma- 
terial. Wagons,  barrels  of  salt  and  heavy  articles 
make  the  most  substantial  structures.  Wire  entan- 
glements are  sometimes  used  in  front  of  barriers. 
A  smaller  guard  is  needed  when  barriers  are  used. 

164.  Machine  Guns  are  of  great  value  in 
guarding   property.      Their    moral    effect    is    often 


(4)     Pars.  76  and  77,  Troops  in  Campaign,  W.  D., 
1892. 

176 


DISPOSITION    OF    TROOPS. 

added  to  by  circulating  reports  as  to  their  extreme 
destructiveness.  For  defending  buildings  and  prop- 
erty the  location  of  the  gun  should  be  changed  at 
nightfall  and  daylight.  Where  no  barriers  are 
constructed,  each  gun  crew  should  station  sentries 
about  two  hundred  feet  in  front  of  the  gun  and 
allow  no  assembling  of  persons  within  that  dis- 
tance. 

165.  Cavalry.  Unless  the  horses  are  well 
trained,  mounted  men  cannot  safely  be  used  against 
a  mob  in  the  first  sta.sres  of  a  riot.  After  control 
of  the  mob  has  been  gained,  cavalry  may  be  em- 
ployed as  patrols  and  thereby  save  the  infantry  a 
great  deal  of  fatiguing  work.      (5) 

European  cavalry,  with  its  thoroughly  trained 
horses,  is  often  used,  in  riot  duty,  before  any  other 
arm.  Its  moral  effect  is  decidedly  good  and  its 
physical  eft'ect  may  be  so  controlled  that  no  harm 
is  done  to  citizens  who  are  not  members  of  the  mob. 
Well-trained  cavalry,  properly  led,  may  avoid  the 
danger  consequent  on  using  modern  rifles. 

1G6.  Artillery  will  usually  be  held  in  reserve 
at  the  inception  of  riot  duty.  But  if  rioters  or  in- 
surgents are  barricaded,  artillery  is  extremely  val- 
uable in  destroying  a  barricade  or  causing  the  dis- 
persal of  those  behind  it.  Militia  artillery  is  usually 
brought  into  action  by  men  on  the  prolongs,  as  un- 


(5)     See  Sec.  23. 

177 


DISPOSITION    OF    TROOPS. 

trained   horses  are  useless  except  for  marches  or 
transportation. 

167.  Medical  Department  details  will  accom- 
pany the  troops  in  order  to  be  ready  for  demands 
that  may  be  made  for  their  services.  The  senior 
officer  will  take  stock  of  stores  and  appliances  on 
the  ground  and  ask  the  assistance  of  other  staff  of- 
ficers in  supplying  deficiencies. 

1G8.  General  Suggestions.  The  proper  per- 
formance of  riot  duty  requires  the  adoption  of,  and 
adherence  to,  general  plans  which  are  tests  of  the 
officers  ability.  An  ambitious  officer  may,  by  deci- 
sive action  and  proper  disposition  of  troops,  acc[uire 
fame.  A  notable  instance  of  this  fact  appears  in 
the  history  of  Napoleon.  During  the  republic  40,- 
000  insurgents  prepared  to  attack  the  convention. 
Its  members  were  greatly  alarmed  at  their  danger. 
One  of  them  proposed  to  intrust  the  defense  to : 
"A  little  Corsican  officer  who  will  not  stand  upon 
ceremony!"  Napoleon,  under  this  introduction,  was 
chosen.  His  defense  was  thorough  and  effective, 
although  it  caused  many  casualties.  Before  this 
event  he  was  unknown ;  because  of  it  he  was  given 
command  of  the  army  of  Italy.  One  tour  of  riot 
duty  made  Napoleon  famous  and  put  him  in  a  posi- 
tion to  become  the  greatest  general  of  any  age. 

Temporizing  with  a  mob  is  usually  an  exhibition 
of  poor  judgment.     It  not  only  indicates  weakness, 

178 


DISPOSITION    OF    TROOPS. 

but  is  injurious  to  the  discipline  of  the  troops.  A 
vacillating  commander  cannot  command  obedience 
from  his  own  force.  How  can  he  expect  to  control 
a  mob? 

It  must  be  borne  in  mind,  in  formulating  plans, 
that  the  procedure  is  absolutely  dependent  on  the 
commander's  orders.  He  must  first  determine 
whether  he  is  to  act  in  aid  of  civil  authorities,  in 
part  independently  of  civil  authorities,  or  indepen- 
dently of  every  one  except  the  governor,  or  the 
president  when  he  sees  fit  to  act. 


179 


CHAPTER  FIFTEEN. 


SUBSISTING,  QUARTERING  AND  PAYING 

TROOPS. 


1G9.  Subsisting  Troops  in  Federal  Service. 
Subsistence  is  ordinarily  furnished,  and  arranged 
for,  through  the  subsistence  department,  under  regu- 
lations prepared  by  authority  of  the  secretary  of 
war.  Paragraph  three  of  the  Manual  for  Subsist- 
ence Department  reads  as  follows  : 

"The  supply  of  the  Army,  and  the  di- 
rection of  the  expenditures  of  the  appro- 
priations for  its  support,  are  by  law  in- 
trusted to  the  Secretary  of  War.  He  exer- 
cises control  through  the  bureaus  of  the 
War  Department.  He  determines  where 
and  how  particular  supplies  shall  be  pur- 
chased, delivered,  inspected,  stored,  and 
distributed.  A.  R.,  821.  Vide  Rev. 
Stats.,  216,  217,  219,  220." 
Under  the  statutes  referred  to  by  this  paragraph 
there  are  two  ways  of  subsisting  a  federal  force: 

First.  By  requisition  and  ration  return,  under 
the  regulations,  to  the  United  States  commissaries, 
on  prescribed  forms,  following  the  method  used  by 
the  regular  army. 

180 


SUBSISTING    TROOPS. 

Second.  Under  sudden  emergencies  where  vol- 
unteers or  militia  are  mustered  into  service  by  the 
federal  government  for  riot  duty  in  another  state, 
or  to  repel  invasion,  the  secretary  of  war  may,  un- 
der authority  of  the  statutes  above  referred  to,  au- 
thorize certain  officers  to  dispense  with  ordinary 
formalities  and  make  contracts  which  will  insure  the 
procurement  of  necessaries  for  the  troops,  until  the 
regular  machinery  of  the  commissary  department 
has  been  sufficiently  supplemented  to  take  care  of 
the  new  force.  The  officers  so  authorized  should  be 
officers  of  the  subsistence  department  to  comply 
with  paragraph  seven  hundred  and  thirty-three  of 
the  manual  for  that  department  which  reads  as  fol- 
lows : 

"It  shall  be  the  duty  of  the  officers  of 
the  Subsistence  Department,  under  the  di- 
rection of  the  Secretary  of  War,  to  pur- 
chase and  issue  to  the  Army  such  supplies 
as  enter  into  the  composition  of  the  ration. 
Rev.  Stats.  1141." 

It  would  seem  that  no  officer  below  the  secretary 
of  war  could  authorize  these  emergency  contracts  to 
be  made  in  other  than  the  regular  way. 

170.  Federal  Service — Emergency  Subsist- 
ence. Where  the  commander  of  a  force,  hastilv 
mustered  into  the  federal  service,  has  received 
authority  to  obtain  emergency  subsistence,  his  staff 

181 


SUBSISTING    TROOPS. 

officers  should  conduct  all  such  business  with  sys- 
tem and  as  nearly  under  the  regulations  of  the  sub- 
sistence department  as  possible.  This  will  enable 
these  acting  commissaries  to  turn  over  the  business 
to  the  regular  subsistence  department  without  em- 
barrassing delays. 

In  order  that  the  commissaries'  good  faith  may 
be  shown,  as  well  as  known,  no  stores  should  be 
purchased  without  securing  written  proposals  from 
available  sources.  These  proposals  will  be  filed  and 
turned  over  with  the  officers'  papers.  If  the  com- 
missaries of  state  troops  have  taken  the  precautions 
suggested  in  section  eighty-nine,  they  will  be  quali- 
fied to  enter,  upon  their  federal  duties  on  sudden 
emergencies. 

171.  State  Statutes  and  Regulations  gov- 
ern subsistence  issues  in  state  service,  where  time 
permits  of  their  being  followed,  but,  as  has  been 
said  before,  time  is  often  of  the  utmost  importance 
in  riot  duty,  and  the  men  must  be  fed  or  their  fight- 
ing ability  is  at  least  cut  in  half  and  their  discipline 
is  almost  destroyed.  Nearly  all  state  regulations 
governing  subsistence  of  troops  have  been  made  by 
command  of  the  governor.  Wherever  he  is  the 
source  from  which  these  regulations  flow,  he  is  also 
the  source  from  which  they  may  be  set  aside  or 
amended.  Therefore,  whenever  the  governor,  ad- 
vised by  his  adjutant  general,  has  reason  to  appre- 

18g 


SUBSISTING    TROOPS. 

hend  that  the  subsistence  machinery  of  his  troops 
cannot  be  put  in  working  order,  concurrently  with 
the  execution  of  an  order  for  state  duty,  he  should, > 
by  a  few  words  added  to  this  order,  permit  the 
commanding  officer  to  make  such  arrangements  for 
subsistence  as  will  least  interfere  with  the  perform- 
ance of  the  duty  required.  Under  such  arrange- 
ments meals  may  be  served  in  restaurants  by  con- 
tracts with  proprietors,  or  any  plan  suited  to  the 
emergency  may  be  lawfully  adopted. 

172.  Emergency  Subsistence  Without  Gr- 
ipers. Where  state  troops  are  suddenly  ordered  into 
state  service  and  no  provision  in  the  order  is  made 
for  subsistence,  the  commanding  officer  has  prob- 
ably the  incidental  power  to  contract,  through  his 
staff  officer,  in  the  name  of  the  state,  for  whatever 
necessaries  his  troops  require.  But  under  these  cir- 
cumstances an  inquiry  may  afterwards  arise,  because 
such  commanding  officer  did  not  follow  the  state 
regulations  for  procuring  subsistence.  He  should 
therefore  be  prepared  to  show  that  the  emergency 
contracts  were  necessary  and  also  that  he  estab- 
lished the  regular  commissary  system  as  soon  as  the 
other  duties  of  the  troops  permitted  him  to  do  so. 

173.  Billeting  Troops  without  consent  of  the 
owners  of  the  property  is  prohibited.  But  this  pro- 
vision does  not  prevent  quartering  the  troops  in 
public  buildings  nor  in  private  buildings  by   con- 

183 


SUBSISTING    TROOPS. 

tract  with  the  owners.  Assembly  halls,  vacant  busi- 
ness blocks  and  other  large  buildings  with  large 
rooms  are  the  best  means  of  quartering  troops,  be- 
cause they  permit  of  sleeping  a  company  or  more 
in  each  room  and  the  property  for  which  the  com- 
pany commander  is  responsible  can  be  more  readily 
guarded.     (1) 

174.  Canvas.  Where  the  weather  is  sufficient- 
ly propitious  regular  camps  are  established  as  soon 
as  possible.  In  doing  this,  where  the  service  is 
likely  to  continue  some  days,  the  quartermaster  may 
erect  all  the  canvas  obtainable,  whether  needed  or 
not.  It  is  safe  to  assume  that  the  rioters  will,  if 
they  continue  to  resist  the  troops,  try  to  ascertain 
the  number  of  men  in  the  command;  and  a  few 
more  tents  on  each  street  may  make  a  difference  in 
their  calculations. 

175.  Quartermaster's  Duties  are  either  pre- 
scribed by  the  state  regulations  or  are  very  fully 
indicated  by  the  quartermaster's  manual,  referred  to 
in  section  eighty-nine.  During  the  exercise  of  mar- 
tial law,  under  orders  of  the  governor,  the  quarter- 
master may  be  given  any  additional  authority  that 
is  necessary.  Under  some  circumstances  these  mar- 
tial law  powers  may  be  very  extensive.  They  are 
indicated  in  chapters  seventeen  and  nineteen. 

176.  Officer's  Servants.     Everv  mounted  of- 


(1)     See  par.  600,  Field  Ser.  Reg.,  1905. 

184 


SUBSISTING    TROOPS. 

ficer  has  occasion  to  use  a  servant.  In  state  service 
some  regulations  permit  of  the  subsistence  and  quar- 
tering of  one  civilian  servant  of  each  mounted  of- 
ficer at  state  expense.  Where  no  such  regulations 
give  the  officer  authority  to  feed  and  quarter  a 
servant  with  the  troops,  it  is  a  wise  provision  to 
make  such  an  order  in  a  campaign  of  any  length. 
To  require  a  mounted  officer  to  act  as  groom,  stable 
guard,  herdsman,  and  horse-holder  is  absolutely  in- 
compatible with  the  performance  of  his  more  im- 
portant duties.  The  time  an  officer  is  daily  re- 
quired to  use  in  caring  for  his  horse,  horse-equip- 
ment and  luggage  is  of  far  more  value  to  the  gov- 
ernment than  one  ration  and  part  of  a  tent.  The 
customary  use  of  strikers,  from  the  enlisted  men, 
might  be  avoided  by  subsisting  these  civilian  serv- 
ants. For  obvious  reasons  the  term  equery  might 
be  used  instead  of  the  word  servant,  in  orders  relat- 
ing to  civilian  assistants  to  mounted  officers. 

177.  Paying  Troops.  This  is  a  matter  of  al- 
most wholly  statutory  regulation.  The  executive 
department  of  the  government  does  the  work  and 
the  law-making  body  pays  the  bills — or  ought  to. 
There  are  statutory  provisions  in  most  states  under 
which  a  so-called  deficiency  board,  acting  usually 
with  the  governor,  can  take  care  of  unusual  pay- 
ments between  sessions  of  the  legislature.  It  is 
the  duty  of  the  governor,  whenever  the  law  permits, 

185 


SUBSISTING    TROOPS. 


to  invoke  the  aid  of  tliis  board  in  paying  state 
troops  for  riot  duty.  While  many  of  the  men  per- 
form their  duty  without  regard  to  pay,  they  are 
nevertheless  entitled  to  proper  recognition  for  their 
services,  and  are  quick  to  resent  any  act  of  bad  faith 
with  regard  to  their  meager  allowances  by  the 
state.  In  times  of  peace  it  costs  the  state  almost 
nothing  to  keep  this  reserve  force  in  a  fair  state  of 
efficiency.  This  efficiency  is  maintained  in  order 
that  these  comparatively  few  men  may  perform  the 
military  services  for  which  nearly  all  able-bodied 
men  in  the  state  are  liable.  To  destroy  this  force 
by  injustice  or  indifference  is  not  fulfilling  the  duty 
which  the  civil  officers  of  the  state  are  sworn  to 
perform. 


186 


CHAPTER  SIXTEEN. 


TACTICAL  USE  OF  TROOPS. 


178.  In  Federal  Service.  The  army  regula- 
tions usually  contain  a  few  paragraphs  on  this  sub- 
ject. These  have  been  slightly  changed  in  succes- 
sive editions.      (1) 

The  difference  between  the  action  of  federal 
troops,  and  the  action  of  state  troops  in  aid  of  civil 
authorities,  seems  to  be  that  federal  troops  cannot 
act  under  the  orders  of  any  civil  officer.  This  dif- 
ference in  control  does  not  legally  relieve  the  fed- 
eral troops  from  responsibility  for  their  actions ;  but 
federal  troops  are  often  harder  to  find  on  conclu- 
sion of  riot  duty  than  are  the  men  who  composed 
the  state  troops.  It  is  therefore  a  fact  that  federal 
troops  run  less  risk  in  the  stern  and  effective  per- 
formance of  riot  duty,  than  do  the  state  troops ; 
because,  while  the  law  that  governs  them  is  the 
same,  (with  the  important  exception  just  named) 
its  application  is  more  difficult  with  regard  to  mem- 
bers of  the  federal  force.  This  is  true  because,  on 
conclusion  of  the  duty,  the  troops  are  usually  re- 
moved from  the  state  before  the  process  of  the  state 


(1)     See  paragraphs  487-488  A.  R.,  1904;  A.  R. 
1895  par.,  490,  etc. 

187 


TACTICAL    USE    OF    TROOPS. 

courts  can  be  served  upon  officers  or  men.  (2) 
They  are  nevertheless  Hable  under  both  miHtary 
and  civil  law  for  acts  of  non-feasance  and  mal- 
feasance and,  by  departing  from  the  state,  have  only 
secured  a  change  of  venue  for  suits  or  actions  which 
are  instituted  or  charges  that  are  filed.  Wherever 
the  passions  of  men  have  been  roused  to  such  an 
extent  that  the  savage  in  their  nature  has  been  up- 
permost for  a  time,  a  change  of  venue  may  be  le- 
gally due  to  any  person  whose  acts  may  have  been 
misconstrued  because  of  this  passion.  It  therefore 
follows  that  the  federal  troops  are  often  entitled  to 
just  the  change  of  venue  which  they  secure.  It 
gives  the  minds  of  men  time  to  cool.  It  permits 
the  citizen's  better  nature  to  overcome  his  savage 
instincts  and  he  views  the  action  of  the  troops  from 
a  different  standpoint.  He  has  had  time  to  reflect 
that,  while  a  few  personal  hardships  have  resulted, 
civil  government  has  been  maintained  and  he  is  now 
living  in  a  state  of  security  as  to  person  and  prop- 
erty, instead  of  being  a  victim  of  the  anarchy  which 
would  have  reigned  without  federal  intervention. 

Furthermore,  federal  troops  have  less  difficulty  in 
ascertaining  and  keeping  informed  of  their  legal 
status;  because  they  are  acting  independently  of 
civil  authorities  and  are  required  only  to  consult 


(2)     See  Tarble's  Case,  13  Wallace,  397;  Sees.  90. 
91,  92;  Sec.  228. 

188 


TACTICAL    USE    OF    TROOPS. 

their  orders  as  to  co-operation  with  state  forces, 
both  military  and  civil. 

It  follows,  from  the  foregoing  reasons,  that  the 
tactical  use  of  federal  troops  should  be  no  more 
drastic  than  that  of  state  troops;  but  that  the  use 
of  federal  troops  is  not  hampered  by  the  necessity 
of  consulting  or  taking  orders  from  the  civil  author- 
ities. In  other  words,  many  of  the  rules  stated  in 
chapter  nine,  relative  to  the  conduct  of  troops  in 
aid  of  civil  authorities,  do  not  apply  to  federal 
troops.  By  federal  troops  is  meant  both  regulars 
and  militia  in  federal  service.  Therefore,  in  plan- 
ing for  the  tactical  use  of  federal  troops,  a  strictly 
military  situation  presents  itself  and  the  main  ques- 
tion is  :    What  force  shall  be  used  ?    This  question : 

"Will    be    decided    by    the    immediate 
commander  of  the  troops,  according  to  his 
judgment  of  the  situation."      (3) 
Federal  regulations  also  prescribe  that : 

"The  fire  of  troops  should  be  withheld 
until  timely  warning  has  been  given  to  the 
innocent  who  may  be  mingled  with  the 
mob.  Troops  must  never  fire  into  a 
crowd  unless  ordered  by  their  command- 
ing officer,  except  that  single  selected 
sharp-shooters  may  shoot  down  individual 
rioters  who  have  fired  upon  or  thrown 


(3)     Par.  488  A.  R.,  1904. 

189 


TACTICAL    USE    OF    TROOPS. 

missiles  at  the  troops.     As  a  general  rule 
the  bayonet  alone  should  be  used  against 
mixed  crowds  in  the  first  stages  of  a  re- 
volt.    But  as  soon  as  sufficient  warning 
has  been  given  to  enable  the  innocent  to 
separate  themselves  from  the  guilty,  the 
action  of  the  troops    should  be  governed 
solely  by  the    tactical    considerations  in- 
volved in  the  duty  they  are  order  to  per- 
form."     (4) 
This  indicates  that  an  order  to  disperse  must  be 
given,  which  is  in  addition  to  the  president's  proc- 
lamation referred  to  in  section  forty-two.    The  reg- 
ulations further  provide  that  the  commanding  offi- 
cer is  governed  by  the  general  regulations  of  the 
army  and  shall  apply  military  tactics  in  carrying 
out  his  orders.     It  is,  moreover,  considered  that: 

"It  is  purely  a  tactical  question  in  what 
manner  they  shall  use  the  weapons  with 
which  they  are  armed — whether  by  fire  of 
musketry  and  artillery  or  by  the  use  of  the 
bayonet  and  saber,  or  by  both,  and  at  what 
stage  of  the  operations  each  or  either 
mode  of  attack  shall  be  employed.  *  * 
They  should  make  their  blows  so  effective 
as  to  promptly  suppress  all  resistance  to 
lawful  authority,  and  should  stop  the  de- 

(4)     Id. 

190 


TACTICAL    USE    OF    TROOPb. 

struction  of  life  the  moment  lawless  re- 
sistance has  ceased.     Punishment  belongs, 
not  to  the  troops,  but  to  the  courts  of 
justice."     (5) 
The  two  sentences  last  quoted  are  more  import- 
ant than  they  seem  at  first  glance.     Unless  destruc- 
tion of  life  is  stopped  as  soon  as  resistance  has 
ceased  the  subsequent    killings  are    murder.      (G) 
By  courts  of  justice  is  meant  not  only  the  ordinary 
civil  courts,  but  the  military  commissions  that  may 
be  established  under  martial  law.     The  last  quoted 
sentence  means  that  a  vanquished  mob  is  entitled 
to  the  benefit  of  the  laws  of  civilized  warfare.     It 
does  not,  however,  prohibit  the  killing  of  one  who 
is  attempting  to  escape  after  the  commission  of  a 
felony  and  who  cannot  be  captured  by  other  means. 

(') 

179.  Federal  Statutes  necessarily  control  any 
regulations  or  orders  with  relation  to  the  tactical 
use  of  federal  troops  under  article  four,  section  four 
of  the  constitution  of  the  Union.  One  of  the  most 
important  of  these,  which  has  been  heretofore  re- 
ferred to,  contains  the  provision  that : 

"It  shall  not  be  lawful  to  employ  any 
part  of  the  army  of  the  United   States, 


(5)  Id. 

(6)  Hare's  Am.  Const.  Law,  922;  Sec.  112. 

(7)  See  Sec.  101. 

191 


TACTICAL    USE    OF    TROOPS. 

as  a  posse  comitatus,  or  otherwise,  for  the 
purpose  of  executing  the  laws,  except  in 
such  cases  and  under  such  circumstances 
as  such  employment  of  said  force  may  be 
expressly  authorized  by  the  Constitution 
or  by  act  of  Congress."     (8) 
Very  few  of  the  federal  statutes,  however,  at- 
tempt to  regulate  the  tactical  use  of  troops.     The 
statutes  applying  to  federal  aid  leave  the  regulation 
of  troops   in  the  hands   of   the  president.       Other 
statutes  use  substantially  this  form : 

"The  military  forces  of  the  United 
States  may  be  applied  in  such  manner  and 
under  such  regulations  as  the  President 
may  direct,"     (9) 

180.  State  Statutes,  relative  to  tactical  em- 
ployment of  troops,  regulate  state  troops  in  state 
service,  if  they  have  been  enacted  under  proper  con- 
stitutional provision.  A  discussion  of  all  of  these 
statutes  is  beyond  the  scope  of  this  work.  Many 
important  ones  are  indicated  in  chapter  nine.      (10) 

181.  Tactics — Definition  of.  Before  enter- 
ing the  discussion  required  by  the  heading  of  the 
next  section  it  may  be  well  to  set  forth  the  defini- 
tion of  the  word  tactics.     Tactics  means  the  art  of 


(8)  Act  of  June  18th,  1878,  (20  Stat.  L.,  152.) 

(9)  Military  Laws  of  the  U.  S.,  Davis,  1901  and 
supplements. 

(10)  See  Sec.  116. 

193 


TACTICAL    USE    OF    TROOPS. 

handling  troops  in  the  presence  of  the  enemy. 
Therefore  whenever  rioters  or  a  mob  may  be  con- 
sidered enemies,  and  the  troops  are  at  the  place  of 
disturbance,  the  handling  of  the  troops  constitutes 
tactics.  The  strategical  use  of  troops  terminated 
upon  their  arrival  at  the  scene  of  disorder. 

182.  State  Regulations  are  published  in  most 
states  whereby  the  state  militia  are  directed,  gen- 
erally, in  the  tactical  employment  of  troops  on  riot 
duty.  But  these  regulations  are  not  always  in  con- 
formity to  the  state  statutes  which  authorize  a  minor 
civil  authority  to  use  troops.  They  are  sometimes 
loosely  drawn  and  therefore  occasionally  prove  per- 
nicious. There  are  instances  where  these  state  reg- 
ulations have  copied  the  army  regulations  without 
recognizing  the  difference  between  the  state  and 
federal  forces,  i.  e.,  that  state  forces  may  be  con- 
trolled by  civil  authorities  and  federal  troops  al- 
ways act  independently. 

The  state  regulations  should  provide  for  two 
kinds  of  tactics,  namely: 

1.  Tactics  in  Aid  of  Civil  Authorities. 

2.  Tactics  under  Qualified,  Co-operative  and 
Absolute  Martial  Law. 

There  is  very  little  difference  in  the  tactical  use 
of  troops  under  the  different  degrees  of  martial  law, 
for  in  all  instances  the  orders  come  from  the  presi- 

193 


TACTICAL    USE    OF    TROOPS. 

dent  or  governor,  give  the  commanding  officer  dis- 
cretionary powers  and  indicate  the  scope  of  the 
work  and  degree  of  force. 

Tactics  in  aid  of  civil  authorities  are  necessarily 
restricted  by  the  control  which  a  sheriff,  mayor  or 
other  civil  officer,  exercises  over  the  military  officer. 

Therefore  a  state  tactical  regulation,  following 
the  federal  plan  and  requiring  independent  action  of 
troops,  is,  as  to  some  occasions,  revoked  by  the  gov- 
ernor's command  to  a  military  officer  to :     "Report 

to  the  sheriff  of county  in  aid  of 

the  civil  authorities." 

183.  Tactics  in  Aid  of  Civil  Authorities 
must  be  determined  by  the  orders  which  the  mili- 
tary commander  receives  from  the  civil  authorities. 
This  may  be  stated  as  a  general  rule  with  relation 
to  the  offensive  measures  that  are  to  be  taken.  But 
the  general  rule  has  several  qualifications: 

1.  A  minor  civil  officer  may  only  direct  troops 
when  the  governor  has  ordered  the  troops  to  re- 
port to  him  for  orders  or  when  this  same  civil  offi- 
cer has  directly  called  out  the  troops.      (11) 


(11)  This  call  must  be  under  statutes  indicated  in 
Sees.  55  and  56.  A  sheriff  or  magistrate  can  not  dele- 
gate his  authority  to  a  military  force  which  he  sum- 
mons to  his  aid  or  vest  in  military  authorities  any  dis- 
cretionary powers  to  take  any  step  or  do  any  act  to 
prevent  or  suppress  a  mob  or  riot.  State  v.  Coit,  8 
O.  Dec,  62. 

194 


TACTICAL    USE    OF    TROOPS. 

a.  A  minor  civil  authority,  under  conditions 
just  recited,  may  tell  the  troops  what  to  do,  but 
not  how  to  do  it.  The  regulation  tactical  employ- 
ment of  troops  may  be  resorted  to  in  carrying  out 
this  order. 

b.  If  the  governor  orders  certain  things  to  be 
done,  the  minor  civil  authorities  may  not  interfere. 
The  regulation  tactical  employment  of  troops  may 
be  resorted  to  in  carrying  out  the  governor's  order. 

c.  The  control  by  civil  authorities  can  never 
prevent  the  troops  acting  in  self-defense.  They  may 
always  use  force  enough  to  successfully  repel  a  phy- 
sical attack  by  a  mob  or  rioter.  The  regulation  tac- 
tical employment  of  troops  may  be  resorted  to  in 
self-defense. 

No  more  than  necessary  force  may  be  used  in 
each  instance.  The  specific  rules  are  stated  in  chap- 
ter nine. 

184.  Tactics  Under  Qualified  Martial 
Law.  This  is  practically  the  same  condition  stated 
in  paragraph  b  of  the  last  preceding  section. 

185.  Tactics  Under  Co-operative  Martial 
Law.  The  federal  regulations  stated  in  section  one 
hundred  and  seventy-eight  may  be  here  followed, 
giving  due  consideration  to  those  civil  authorities 
who  are  still  properly  performing  their  functions. 
The  degree  of  co-operation  may  be  indicated  in  the 

195 


TACTICAL    USE    OF    TROOPS. 

order  for  service.     Specific  situations  are  indicated 
in  chapter  ten,  and  hereafter  in  this  chapter. 

186.  Tactics  Under  Absolute  Martial  Law. 
The  federal  regulations  stated  in  section  one  hun- 
dred and  seventy-eight  here  apply  without  qualifica- 
tion. Specific  rules  are  stated  in  chapters  eleven, 
seventeen,  eighteen  and  nineteen. 

187.  Use  of  Bayonet.  When  the  mob  is  to  be 
dispersed,  and  rifle  fire  is  not  necessary,  the  bayonet 
may  be  resorted  to  without  hesitation.  The  only 
qualification  is  that  an  order  to  disperse  should, 
where  the  mob  is  not  engaged  in  a  felony  which 
prohibits  waste  of  time,  be  first  given.  Winthrop, 
with  relation  to  energetic  actions  against  the  mob, 
makes  the  following  statements : 

"On  the  occasion  of  the  Railway  Strike 
of  July,  1894,  a  blow  with  the  sword  ad- 
ministered to  a  leader  of  the  obstruction- 
ists at  Livingston,  Montana,  inflicting  a 
slight  wound,  by  the  captain  commanding 
the  detachment  of  United  States  troops, 
contributed  most  materially  in  putting  an 
end  to  the  existing  formidable  obstruction 
and  opening  the  Northern  Pacific  Rail- 
road to  the  transportation  of  the  United 
States  mails  and  the  free  transit  of  pas- 
sengers, 

'It  is  better  to  anticipate  more  danger- 
196 


TACTICAL    USE    OF    TROOPS. 

ous  results  by  energetic  intervention  at 
the  inception  of  a  threatened  breach  of 
the  peace,  than  by  delay  to  permit  the  tu- 
mult to  acquire  such  strength  as  to  de- 
mand for  its  suppression  those  urgent 
measures  which  should  be  reserved  for 
great  extremities.'  "     (12) 

188.  Use  of  Blank  Cartridges  seems  to  be 
generally  condemned.  Some  state  statutes  ex- 
pressly forbid  their  use  in  riot  duty.  It  is  plain  that 
if  mobs  are  taught  to  expect  rifle  fire  to  be  harm- 
less, the  moral  effect  of  it  is  not  only  lost  but,  when 
ball  cartridges  are  finally  used,  the  rioters  nurse  an 
additional  hate;  reasoning  that  they  have  been  be- 
trayed. 

189.  Safeguards  and  Outposts.  Where 
troops  are  acting  independently  of  civil  authorities 
the  Cossack  post  may  be  used  for  safeguards,  with 
orders  similar  to  those  set  out  in  section  one  hun- 
dred and  sixty-two.  Outposts,  where  necessary,  are 
more  easily  handled  under  the  Cossack  post  plan 
that  the  European  plan  of  reserve,  supports,  pickets 
and  sentries.  The  reason  why  Americans  take  so 
naturally  to  the  Cossack  post  system  of  outposts  is 
because  it  is  really  an  American  system  under  an 
alias.     It  bears  the  same  relation  to  the  European 


(12)     Winthrop's  Mil.  Law  and  Prec,  p.  1351;  2 
Wharton,  Criminal  Law,  Sec.  1555. 

197 


TACTICAL  USE  OF  TROOPS. 

system  as  does  the  modern  code  pleading  to  one  of 
the  eighteenth  century. 

190.  Guarding  Large  Areas.  Where  a  num- 
ber of  city  blocks  are  to  be  guarded  at  night,  a  re- 
sort is  sometimes  had  to  picket  posts  and  sentries. 
If  these  sentries  are  in  danger  of  assassination  or 
injury  two  men  should  occupy  each  post,  even  if 
the  number  of  posts  must  be  lessened.  A  lone  sen- 
try, at  the  corner  of  two  alleys  at  night,  is  a  temp- 
tation to  the  vicious.  His  attention  may  be  attracted 
and  engaged  by  one  rioter  while  he  is  quietly  sand- 
bagged from  behind  by  another. 

In  preserving  quiet  in  a  city  large  scaled  maps 
may  be  used  in  blocking  off  districts.  If  cavalry  is 
not  available  for  patrols,  a  reserve  is  often  estab- 
lished and  furnished  with  patrol  wagons  which 
carry  squads  to  any  point  where  disorder  exists. 


lf)8 


CHAPTER  SEVENTEEN. 


MARTIAL  LAW. 


191.  Definition.  In  section  three,  martial 
law  is  spoken  of  as  the  law  enforced  by  a  military 
commander  over  civilians  in  a  certain  district  at 
certain  times.  The  term  martial  law  means  the 
rule  of  the  military  as  distinguished  from  that  of 
the  civil  authorities;  but  law  writers  have  com- 
monly avoided  the  duty  of  concisely  defining  the 
meaning  of  the  "law"  part  of  the  term  "martial 
law."  As  a  matter  of  fact  the  meaning  varies  with 
the  degree  of  militarism  required  in  its  exercise. 
There  are,  perhaps,  three  degrees  of  martial  law, 
and  the  reader  is  necessarily  referred  to  the  next 
three  sections  for  definition ;  because  a  definition  of 
the  general  term  fits  neither  degree.     (1) 

192.  Absolute  Martial  Law.  The  first  de- 
gree of  martial  law  is  where  it  is  the  only  law  pre- 
valent in  a  certain  district  and  the  will  of  the  mili- 
tary commander  is  well  nigh  absolute.  His  mili- 
tary commissions  are  the  only  courts  which  can  be 
found  where  rights  of  civilians  may  be  enforced  and 
their  wrongs  redressed.     This  is  the  highest  degree 


(1)     See  Sec.  198. 

199 


MARTIAL    LAW. 

of  martial  law.  All  civil  courts  have  absolutely 
ceased  to  exercise  their  functions.  The  military 
commander  must  organize  a  provisional  govern- 
ment for  the  civilians  in  the  district.  He  must  de- 
tail officers,  or  civilians,  to  perform  the  various  gov- 
ernmental functions.  A  military  district  com- 
mander is  necessarily,  under  these  circumstances,  a 
dictator.  But,  as  has  been  said  before,  he  may  be 
subject  to  punishment  as  soon  as  his  reign  is  over. 
During  his  incumbency,  however,  he  is  responsible 
for  the  good  government  of  his  district.  Govern- 
ing the  district  is  a  duty  which  he  may  not  shirk. 
The  laws  he  should  enforce  are: 

First.  The  civil  laws  wherever  adequate  and  ap- 
plicable. 

Second.  The  written  laws  which  he  will  from 
time  to  time  publish  in  the  form  of  proclamations 
or  orders. 

Third.     The  customs  of  war  in  like  cases. 

Each  law,  so  applied,  would  be  a  rule  of  civil 
conduct,  prescribed  by  competent  military  author- 
ity, commanding  certain  things  as  necessary  to,  or 
forbidding  certain  things  as  inconsistent  with,  the 
peace  and  order  of  society.      (2) 

193.  Co-operative  Martial  Law  is  exercised 
by  federal  military  officers,  under  orders  therefor. 
The  degree  of  martial  law,  less  than  absolute,  which 


(2)     Robinson's  Elementary  Law. 

200 


MARTIAL    LAW. 

federal  military  officers  may  exercise,  can  hardly  be 
called  qualified  martial  law,  because  civil  officers 
cannot  interfere  with  or  give  orders  to  federal  mili- 
tary officers.     (3) 

Co-operative  martial  law  may  also  be  applied  by 
state  troops  in  state  service  wherever  certain  civil 
authorities  can  be  induced  to  properly  perform  their 
duties  in  a  military  district.  On  these  occasions  the 
military  commander  will  supplement  whatever  civil 
law  is  being  enforced  with  that  degree  of  martial 
law  which  is  necessary  to  completely  round  out  the 
governmental  functions. 

Under  these  circumstances  the  laws  are  applied 
by  the  military  commander  in  the  same  order  as  in 
absolute  martial  law.  But  written  orders  and  proc- 
lamations of  the  commander  will  be  so  framed  as  to 
permit  of  certain  civil  officers  performing  their 
functions.      (4) 

19-i.  Qualified  Martial  Law  is  commonly 
exercised,  by  order  of  the  governor,  where  troops 
are  quelling  a  riot  or  mob,  when  the  civil  authori- 
ties are  powerless,  indifTerent  or  secretly  in  sym- 
pathy with  the  mob.  These  troops  may  be  nom- 
inally under  orders  of  the  local  civil  authorities  or 
may  be  acting  directly  under  orders  of  the  gov- 


(3)  See  Sec.  139;  Act  of  Congress  of  June  18, 
1878,  (20  Stat.  L.,  152.) 

(4)  See  Sec.  119. 

201 


MARTIAL    LAW. 

ernor  in  preventing  a  threatened  violation  of  law 
on  an  occasion  similar  to  that  indicated  in  section 
thirty-six. 

This  degree  of  martial  law  also  arises  where 
troops  have  been  ordered  to  aid  the  civil  authorities 
and  have  later,  by  proper  order;  been  compelled  to 
act  in  opposition  to  the  order  of  certain  authorities. 
The  martial  law  here  exercised  may  be  increased 
in  degree,  but  is  ordinarily  confined  to  one  or  two 
acts  of  arbitrary  authority. 

Qualified  martial  law  may  also  be  exercised  by 
the  military  commander  in  carrying  out  specific  or- 
ders of  the  civil  authorities. 

195.  Civil  Law.  Technically  this  term  is  still 
used  to  denote  the  Roman  law.  It  is  now  sometimes 
used  to  distinguish  those  statutory  and  common  law 
rules  of  a  community  which  do  not  relate  to  crimes 
and  offenses ;  the  latter  being  called  rules  of  crim- 
inal law. 

"Civil  Law,"  as  the  term  is  used  in  this  work, 
means  the  law,  both  civil  and  criminal,  that  ordi- 
narily governs  civilians,  in  contradistinction  to  mar- 
tial law  and  military  law. 

196.  Insurrection  and  Rebellion.  Abso- 
lute martial  law  is  exercised  in  districts  or  states 
which  are  in  insurrection  or  rebellion.  These 
terms  have  been  defined  in  section  thirty-two.  Or- 
dinarily an  insurrection  which  requires  the  exercise 

202 


MARTIAL    LAW. 

of  full  martial  law  powers  is  one  brought  about  by 
great  disturbance  and  violence.  But  a  harmless 
and  bloodness  attempt  to  overthrow  an  existing 
government,  or  to  resist  the  laws,  if  made  by  the 
united  civilians  of  a  certain  section  of  the  country, 
may  require  the  full  exercise  of  martial  law.  (5) 
197.  Status  of  Insurgents.  In  military  dis- 
tricts established  under  absolute  martial  law,  all 
residents  of  the  district  become  liable  to  be  treated 
as  enemies  until  control  is  gained  by  the  military. 
(6)      But  this   legal   rule  requires  qualification   in 


(5)  22nd  Cyc,  1452.  Allegheny  County  v.  Gib- 
son, 90  Pa.  St.,  397,  417,  35  Am.  Rep.,  670;  "If,  there- 
fore, it  shall  appear  to  you  that  any  person  or  persons 
have  willfully  obstructed  or  retarded  the  mails,  and 
that  their  attempted  arrest  for  such  ofifense  has  been 
opposed  by  such  a  number  of  persons  as  would  con- 
stitute a  general  uprising  in  that  particular  locality, 
and  as  threatens  for  the  time  being  the  civil  and  polit- 
ical authority,  then  the  fact  of  an  insurrection  *  * 
has  been  established ;  and  he  who  by  speech,  writing, 
or  other  inducement  assists  in  setting  it  on  foot,  or 
carrying  it  along,  or  gives  it  aid  or  comfort,  is  guilty 
of  a  violation  of  law."  In  re  Charge  to  Grand  Jury, 
G3  Fed.,  828. 

(6)  Ford  V.  Surgett,  97  U.  S.  594-604;  Rice  v. 
Shook,  27  Ark.,  137,  11  Am.  Rep.,  783;  Knoefel  v. 
Williams,  30  Ind.,  1 ;  Turner  v.  North  Carolina  R. 
Co.,  63  N.  C,  522;  Prize  Cases,  2  Black  (U.  S.)  635, 
17  L.  ed.,  459 ;  The  Amy  Warwick,  1  Fed.  Cas.  No. 
341,  2  Sprague,  123;  The  D.  Sargeant,  7  Fed.  Cas. 

203 


MARTIAL    LAW. 

actual  practice,  and  the  federal  orders  therefore  pre- 
scribe that : 

"The  militai-y  commander  of  the  legiti- 
mate government,  in  war  of  rebellion,  dis- 
tinguishes between  the  loyal  citizen  in  the 
revolted  portion  of  the  country  and  the 
disloyal  citizen.  The  disloyal  citizens 
may  further  be  classified  into  those  citi- 
zens known  to  sympathize  with  the  rebel- 
lion without  positively  aiding  it;  and  those 
who,  without  taking  up  arms,  give  posi- 
tive aid  and  comfort  to  the  rebellious 
enemy  without  being  bodily  forced 
thereto.  Common  justice  and  plain  expe- 
diency require  that  the  military  com- 
mander protect  the  manifestly  loyal  citi- 
zens in  revolted  territories  against  the 
hardships  of  the  war  as  much  as  the  com- 
mon misfortune  of  all  war  admits."  (7) 
198.  Elasticity  of  Martial  Law.  In  Bishop 
on  Criminal  Law,  the  author,  in  discussing  the  sub- 
ject of  martial  law,  says : 


No.  4,098.  "The  fact  that  the  number  of  insurgents 
in  a  state  is  so  great  that  they  carry  on  a  civil  war 
against  the  government  does  not  entitle  the  govern- 
ment set  up  by  such  insurgents  to  the  privileges  of 
sovereignty."  U.  S.  v.  Smith,  27  Fed.  Cas.  No.  16,- 
318;  see  Sec.  32. 

(7)     Pars.  815,  816,  Field  Ser.  Reg.,  1905. 

204 


MARTIAL    LAW. 

"Martial  law  is  elastic  in  its  nature, 
and  easily  adapted  to  varying  circum- 
stances. It  may  operate  to  the  total  sus- 
pension or  overthrow  of  the  civil  author- 
ity ;  or  its  touch  may  be  light,  scarcely  felt, 
or  not  felt  at  all,  by  the  mass  of  the  peo- 
ple, while  the  courts  go  on  in  their  ordi- 
nary course,  and  the  business  of  the  com- 
munity flows  in  its  accustomed  chan- 
nels." (8) 
The  supreme  court  of  the  United  States,  on  this 
subject,  says: 

"Martial  law  is  the  law  of  military  ne- 
cessity in  the  actual  presence  of  war.     It 
is  administered  by  the  general  of  the  army, 
and  is,  in  fact,  his  will.     Of  necessity  it 
is  arbitrary,  but  must,  in  fact,  be  obeyed." 
(9) 
199.     Necessity  for  Martial  Law  determines 
the  right  to  use  it.     The  executive  branch  of  the 
government  must  perform  its  duties.     One  of  these 
duties  is  to  decide  when  and  in  what  degree  mar- 
tial law  shall  be  exercised.      This  decision  is  not 
subject  to  review.    The  exercise  of  this  right,  when 
necessity  therefor  seems  to  arise,  is  necessary  to  the 
very  existence  of  the  government.    When  civil  law 


(8)  Vol.  1,  6th  Ed.,  Sec.  52. 

(9)  U.  S.  v.  Diekelman,  93  U.  S.,  520-6. 

205 


MARTIAL    LAW. 

is  dead,  dormant,  or  inadequate  to  an  emergenc)^ 
the  government  itself  may  be  overthrown  unless 
resort  is  had  to  martial  law.  The  old  maxim  that: 
"Tyranny  is  better  than  anarchy  and  the  worst  gov- 
ernment is  better  than  none  at  all,"  has  often  been 
applied  to  those  absolute  monarchies  which  are 
governed  at  all  times  by  military  force.  This  old 
maxim  recognizes  the  fact  that  the  perpetual  exer- 
cise of  worse  than  martial  law  is  better  than  a  state 
of  anarchy  or  no  government  at  all.  In  the  states 
of  the  American  Union  the  resort  to  martial  law 
is  only  made  when  situations  demand  its  exercise. 
Under  monarchies  where  military  government  is 
perpetual  no  officer  can  be  called  to  account,  by 
civil  courts,  for  abuse  of  his  authority.  But  here, 
after  the  temporary  exercise  of  martial  law  and 
the  restoration  of  order,  the  officers  who  have  exer- 
cised martial  law  powers  are  again  amenable  to  the 
process  of  the  civil  courts  and  their  exercise  of  mar- 
tial law  powers  may  be  reviewed  and  proper  penal- 
ties inflicted. 

Therefore,  even  during  the  exercise  of  martial 
law,  there  is  a  vast  difference  between  the  situation 
of  our  civilians  and  that  of  the  civilians  of  most 
European  nations;  for  there  the  military  power 
may  be  abused  without  a  thought  for  the  conse- 
quences, while  here  martial  law  is  exercised  under 
the  powerful    restraint    imposed  by  the  fact  that 

306 


MARTIAL    LAW. 


every  action  of  the  military  commander  may,  if 
necessary,  be  afterward  scrutinized  by  tlie  civil 
courts. 

200.  State  Powers.  Chief  Justice  Taney,  in 
dehvering  an  opinion  of  the  United  States  supreme 
court,  said : 

"The  right  of  a  state  to  declare  martial 
law  and  use  its  military  power  to  put  down 
an  armed  insurrection,   too  strong  to  be 
controlled  by   the  civil   authority,   is  un- 
questioned.    The  power  is  essential  to  the 
existence  of  every  government,  essential  to 
the  preservation  of  order  and  free  insti- 
tutions, and  is  as  necessary  to  the  states 
of  this  union  as  to  any  other  government. 
The  state  itself  must  determine  what  de- 
gree of  force  the  crisis  demands."      (10) 
It  has  been    heretofore    shown    that  this    state 
power  is  commonly  intrusted  to  the  governor.     It 
is  therefore  a   general     rule  that  all    martial   law 
powers,  conferred  on  state  troops  in  state  service, 
come  directly  from  the  governor.     These  powers 
may  be  in  the  form  of  a  direct  order  to  the  military 
commander  or  may  be  exercised  by  him  under  a 
general  proclamation. 

Where  a  governor  issues  a  general  order,  calling 
out  the  militia  to  suppress  violence  and  maintain 

(10)     Luther  v.  Borden,  7  Howard,  (U.  S.)  45. 

207 


MARTIAL    LAW. 

the  public  peace  in  a  district  affected  by  a  strike,  it 
is  a  declaration  in  such  district  of  qualified  martial 
law.     (11) 

201.  President's  Powers.  The  United  States 
Constitution,  having  given  congress  the  power  to 
declare  war,  primarily  raised  a  question  as  to  the 
power  of  the  president  to  exercise  martial  law 
powers  and  to  suspend  the  writ  of  habeas  corpus. 
But  the  federal  laws  set  forth  in  section  forty-two 
plainly  indicate  that  the  president  has  been  invested 
by  congress  with  full  powers  in  times  of  insurrec- 
tion and  domestic  disturbance.  Under  these  stat- 
utes he  may  declare  almost  any  prescribed  part  of 
the  country  to  be  in  a  state  of  insurrection,  and  may 
thereafter  exercise  full  or  co-operative  martial  law 
within  this  district  without  reference  to  any  other 
civil  authority  whatever.  (13)  These  are  the  dis- 
cretionary powers  which  have  been  vested  in  him, 
first  by  the  acts  of  the  states  in  framing  the  federal 
constitution,  second  by  the  act  of  congress  in  in- 
trusting to  him  certain  of  its  war  powers.  With 
reference  to  these  duties  of  the  president  it  has  been 
said : 

"If  he  deem  the  placing  any  district 
under  martial  law  a  proper  measure,  it  is 
difificult  logically  to  deny  him  the  right 


(11)  Commonwealth  v.  Shortall,  55  A.  952,  206 
Pa.  St..  165. 

(12)  See  Sec.  217. 

208 


MARTIAL    LAW. 

to  do  it.  Someone  must  judge  of  the  ne- 
cessity ;  the  determination  of  some  author- 
ity must  be  final.  And  where,  with  rea- 
son, can  be  lodged  this  discretionary 
power  with  greater  safety  than  with  that 
branch  of  the  government  to  which  is  in- 
trusted the  conduct  of  the  war,  and  which 
is  held  responsible  for  its  successful  pros- 
ecution?"    (13) 

202.  Territorial  Governor's  Powers.  Gov- 
ernors of  the  territories  of  the  United  States  may, 
by  permission  of  the  president,  declare  martial  law 
within  their  territories  when  necessary.  This  right 
has  heretofore  been  denied  by  an  attorney  general 
of  the  United  States.  (14)  But  his  opinion  was 
afterwards  disregarded  by  a  governor  of  the  same 
territory.  (15)  This  governor  was  required  to 
make  a  choice  between  martial  law  and  anarchy,  and 
when  any  government  is  driven  to  such  an  extrem- 
ity the  right  to  enforce  martial  law  has  certainly 
accrued.     It  is  then  a  time  of  war. 

203.  Exercise  of  Absolute  Martial  Law. 
In  the  exercise  of  absolute  martial  law  the  military 
commander  must  exercise  the  functions  of  every 
civil  officer,  or  cause  these  functions  to  be  exercised 


(13)  Birkhimer,  Mil.  Gov.  &  Mar.  Law,  p.  378. 

(14)  8  Opin.  of  Atty.  Gen.,  p.  365,  et  seq. 

(15)  Birkhimer  Mil.  Gov.  &  Mar.   Law,  p.  499. 

209 


MARTIAL    LAW, 

under  his  direction  and  control.  Proclamations  will 
indicate  the  will  of  the  commander  and  his  appoint- 
ments to  various  positions  which  must  be  filled  in 
his  provisional  government.  But  those  govern- 
mental affairs  which  may  be  safely  postponed  should 
be  allowed  to  remain  in  statu  quo  until  the  regular 
civil  government  has  been  re-established.  It  is  im- 
possible to  set  out,  in  this  volume,  all  the  rules  which 
govern  in  the  administration  of  absolute  martial 
law,  but  a  few  of  the  most  important  are  shown  in 
the  sections  next  following. 

204.  Principal  Rules,  a.  To  save  the  coun- 
try is  paramount  to  all  other  considerations. 

b.  A  place,  district,  or  country  declared  in  in- 
surrection and  occupied  by  troops,  is  under  martial 
law. 

c.  The  occupation  applies  only  to  the  territory 
where  military  authority  is  established  and  in  a 
position  to  assert  itself. 

d.  The  martial  law,  thus  established,  does  not 
cease  until  express  proclamation  or  order  restores 
the  civil  authorities. 

e.  Martial  law  consists  in  the  suspension,  by  the 
occupying  military  authority,  of  the  criminal  and 
civil  law,  and  of  the  domestic  administration  and 
government  in  the  occupied  territory,  and  in  the 
substitution  of  military  rule  and  force  for  the  same, 
as  well  as  in  the  dictation  of  general  laws,  as  far 

210 


MARTIAL    LAW. 

as  military  necessity  requires  this  suspension,  sub- 
stitution, or  dictation. 

f.  The  mihtary  commander  may  proclaim  cer- 
tain laws.  (See  section  one  hundred  and  ninety- 
two.) 

g.  No  general  penalty,  pecuniary  or  otherwise, 
can  be  inflicted  on  the  whole  population  on  account 
of  the  acts  of  individuals,  unless  the  entire  popu- 
lation is  collectively  responsible. 

h.  No  taxes  shall  be  collected  except  under  a 
written  order  and  on  the  responsibility  of  a  com- 
mander-in-chief. This  collection  shall  only  take 
place,  as  far  as  possible,  in  accordance  with  the  rules 
in  existence  and  the  assessment  of  taxes  in  force. 

i.  Neither  requisition  in  kind  nor  services  can 
be  demanded  from  civilians  except  for  the  necessi- 
ties of  the  army  of  occupation.  They  must  be  in 
proportion  to  the  resources  of  the  country,  and  de- 
manded only  on  the  authority  of  the  commander  in 
the  locality  occupied.  Receipts  must  be  given  in 
every  instance. 

j.  The  commander  of  an  attacking  force,  be- 
fore commencing  a  bombardment,  except  in  the  case 
of  an  assault,  shall  give  fair  warning. 

k.  Railways,  telegraphs,  telephones,  ships  and 
all  kinds  of  war  material  may  be  used  for  military 
service,  but  shall  be  restored  at  the  conclusion  of 
peace  and  compensation  paid  for  their  use. 

211 


MARTIAL    LAW. 

1.  Family  honors  and  rights,  individual  Hves 
and  private  property  as  well  as  religious  convictions 
and  liberty,  must  be  respected.  Private  property 
can  not  be  confiscated. 

m.  Edifices  devoted  to  religion,  art,  science  and 
charit}',  especially  all  hospitals  and  places  where 
sick  and  wounded  are  collected,  should  be  protected. 
These  may  be  indicated  by  some  particular  and  vis- 
ible sign. 

n.  Pillage  is  absolutely  prohibited  even  where  a 
town  or  place  is  taken  by  assault. 

o.  No  property  will  be  destroyed  or  seized  un- 
less such  destruction  or  seizure  be  imperatively  de- 
manded by  the  necessities  of  war. 

p.  All  personal  belongings  of  prisoners  of  war, 
except  arms,  horses  and  military  papers,  shall  re- 
main their  property.  Prisoners  must  be  humanely 
treated.  A  prisoner  of  war  is  a  public  enemy  armed 
or  attached  to  the  hostile  army  for  active  aid,  who 
has  fallen  into  the  hands  of  the  captor,  either  fight- 
ing or  wounded,  on  the  field  or  in  the  hospital,  by 
individual  surrender  or  by  capitulation.      (16) 

205.     Right    of    Search.     With    reference    to 


(16)  .See  G.  O.  100,  A.  G.  O.,  1863;  Appendix  to 
'MW.  Laws.  U.  S.,  Davis,  1901 ;  Appendix  to  Birk- 
himer,  Mil.  Gov.  &  Mar.  Law ;  Hague  Conference 
Code  in  G.  O.  52,  A.  G.  O.,  1902;  Field  Ser.  Reg., 
U.  S.,  1905 ;  American  National  Red  Cross  Act  of 
June  6,  1900.  (31  Stat.  L.  1900). 

212 


MARTIAL    LAW. 

the  Dorr  insurrection  in  Rhode  Island  (where,  by 
the  way,  armed  colhsion  was  only  threatened,  with- 
out an  actual  conflict  of  the  opposing  forces),  it 
was  held: 

"It  was  a  state  of  war;  and  the  estab- 
lished government  resorted  to  the  rights 
and  usuages  of  war  to  maintain  itself,  and 
to  overcome  the  unlawful  opposition.  And 
in  that  state  of  things  the  officers  engaged 
in  its  military  service  might  lawfully  ar- 
rest any  one  who,  from  the  information 
before  them,  they  had  reasonable  grounds 
to  believe  was  engaged  in  the  insurrec- 
tion, and  might  order  a  house  to  be  en- 
tered and  searched,  where  there  were  rea- 
sonable grounds  for  supposing  he  might 
be  there  concealed.  Without  the  power 
to  do  this,  martial  law  and  the  military 
array  of  the  government  would  be  mere 
parade,  and  rather  encourage  attack  than 
repel  it."      (17) 

206.  Jurisdiction  of  Civil  Courts.  Where 
war  actually  prevails  the  ordinary  courts  have  no 
jurisdiction  over  the  action  of  the  military  authori- 
ties, and  the  mere  fact  that  some  of  the  ordinary 
courts  are  open  is  not  sufficient  to  constitute  a  time 


(17)     Luther  v.  Borden,  7  How.,  1. 

213 


MARTIAL    LAW. 

of  peace,  and  thereby  to  exclude  the  operation  of 
martial  law.      (18) 

207.  Administration  of  Martial  Law.  The 
formation  of  martial  law  courts  has  been  indicated 
in  section  one  hundred  and  thirty-six.  With  refer- 
ence to  their  action  it  may  be  said  that  a  condition 
of  affairs,  warranting  the  use  of  martial  law,  im- 
poses on  a  military  commission  the  same  duty  in- 
trusted to  civil  courts.  That  duty  has  been  defined 
to  be  the  punishment  of  offenders  so  as  to  deter 
others  from  committing  the  same  offense.  Ven- 
geance belongs  neither  to  civil  courts  nor  to  military 
commissions.  In  restoring  peace  and  government 
to  insurgents,  military  commissions  may  take  cog- 
nizance of  any  offense  which  interrupts  any  detail 
of  the  progress  of  the  work  of  reconstruction.  This 
is  done  that  order  may  be  restored  as  soon  as  pos- 
sible. 

In  the  restoration  of  order  it  may  be  the  duty  of 
military  commissions  to  suppress  certain  publica- 
tions and  to  do  other  things  which  are  not  at- 
tempted, and  are  not  proper,  in  time  of  peace.  Pun- 
ishments are  necessarily  summary.  The  deterrent 
influence  is  the  sooner  made  to  appear. 

208.  Punishments.     Punishments    will    never 


(18)  (Eng.  1902.)  Marais  v.  General  Officer 
Commanding  the  Lines  of  Communication,  71  Law  J. 
P.  C,  42;  App.  Cas.  109,  85  Law  T.,  734,  50  Wkly. 
Rep.,  273. 

314 


MARTIAL    LAW. 

be  unnecessarily  cruel,  but  are  occasionally  unusual. 
I  nusual  punishments  are  sometimes  required  by 
stress  of  circumstances  and  at  other  times  are  re- 
sorted to  as  deterrents  in  lieu  of  more  severe  pun- 
ishments. A  recent  instance  in  the  Philippines  may 
serve  to  illustrate  what  is  meant  by  an  unusual  pun- 
ishment. A  Philippino  woman  was  brought  to 
court,  charged  with  having  sold  vino  to  soldiers. 
She  plead  guilty,  was  reprimanded  and  fined  ten 
pesos  which  she  could  not  pay.  She  was  thereupon 
discharged  on  her  promise  to  refrain  from  again 
committing  the  ofifense.  She  was  arrested  the  next 
day  and  again  pled  guilty.  This  time  she  was  ban- 
ished to  a  village  ten  miles  distant.  On  the  third 
day  she  was  again  caught  in  the  act  of  selling  vino, 
and,  for  the  third  time,  pled  guilty.  Her  insolent 
disregard  of  law  puzzled  the  court  in  finding  a  pun- 
ishment. The  presiding  ofiicer  in  his  embarrass- 
ment glanced  from  the  window  of  the  court  onto 
the  street.  It  was  necessary  to  break  up  the  prac- 
tice of  selling  this  poisonous  stuff.  A  barber's  pole 
in  the  street  gave  him  an  idea.  He  resumed  his 
seat  and  sentenced  the  woman  to  have  her  hair  cut 
short.  As  Philippino  women  are  very  vain  of  their 
luxuriant  hair  the  sentence  seemed  terribly  severe 
to  the  culprit.  Her  insolence  vanished  and  she  be- 
gan to  beg  for  another  chance.  The  sentence  was 
immediately  executed  and,  thereafter,  not  another 

^15 


MARTIAL    LAW. 

woman  in  Manila  sold  vino  to  the  soldiers.      (19) 

209.  Exercise  of  Co-operative  Martial 
Law  is  similar  in  all  respects  to  the  exercise  of  ab- 
solute martial  law  with  the  important  difference 
that  it  is  supplemental  to  certain  existing  civil  au- 
thorities. Its  application  has  been  indicated  in 
chapter  ten.  The  most  important  question  in  ad- 
ministering co-operative  martial  law  will  be  an- 
swered from  the  orders  from  which  the  military 
commander  derives  his  authority.  It  is  this: 
What  are  the  jurisdictional  limits?  It  is  manifest 
that  the  answer  to  this  question  depends  partly  upon 
the  circumstances  of  each  particular  case.  But 
when  a  military  force  is  in  the  field  and  is  required 
to  supply  certain  governmental  functions  as  well  as 
to  restore  order  and  preserve  life  and  property,  it 
would  destroy  the  effect  of  such  a  force  to  forbid 
it,  either  directly  or  indirectly,  to  perform  the  duties 
for  which  it  was  called  into  the  field. 

210.  Exercise  of  Qualified  Martial  Law  is 
varied  in  its  nature  because  of  the  extreme  variety 
in  the  circumstances  occasioning  its  use.  It  must  be 
remembered  that  when  an  officer  is  acting  strictly 
in  aid  of  civil  authorities,  his  powers  are  as  limited 
as  are  those  of  the  civil  officer.  Martial  law  has 
sometimes  been  defined  as  national  self-defense  and 
a  certain  locality  under  its  civil  officers  is  entitled  to 


(19)     Journal  U.   S.   Inf'y.  Ass'n.,  January,  1907. 

21G 


MARTIAL    LAW. 

the  same  class  of  self-defense,  namely,  the  civil  of- 
ficers may  do  those  things  which  are  necessary  to 
preserve  peace  and  order,  secure  life  and  property 
and  allay  a  tumult  or  disperse  a  mob.  There  are 
usually  plenty  of  statutes  which  are  being  violated 
when  a  mob  is  formed,  or  is  operating,  and  a  sher- 
iff's orders  to  a  military  commander  ought  always 
to  be  broad  enough  to  control  the  situation  and  all 
conditions  which  may  arise,  but  it  is  the  duty  of  the 
governor  to  see  that  the  sheriiif  is  performing  his 
duty  and  at  the  first  intimation  that  the  troops  are 
being  hampered,  in  any  action  which  is  necessary  to 
restore  quiet,  the  governor's  order  directed  to  the 
military'  commander  should  furnish  the  powers  that 
are  lacking.  Details  of  this  subject  are  indicated  in 
the  next  succeeding  sections. 

311.  Establishing  Qualified  Martial  Law. 
The  leading  case  on  this  subject  was  decided  by 
the  Pennsylvania  supreme  court  in  1903  The  sher- 
iff of  Schuylkill  county  called  upon  the  governor 
whose  order  calling  out  the  guard  recites  conditions 
which  existed  and  is  as  follows : 

"  'In  certain  portions  of  the  counties  of 
Luzerne,  Schuylkill,  Carbon,  Lackawanna, 
Susquehanna,  Northumberland  and  Co- 
lumbia, tumult  and  riot  frequently  occur 
and  mob  law  reigns.  Men  who  desire  to 
work  have  been  beaten  and  driven  away 

217 


MARTIAL    LAW. 

and  their  families  threatened.  Raih'oad 
trains  have  been  delayed  and  stoned,  and 
tracks  torn  up.  The  civil  authorities  are 
unable  to  maintain  order  and  have  called 
upon  the  governor  and  commander-in- 
chief  of  the  national  guard  for  troops. 
The  situation  grows  more  serious  each 
day.  The  territory  involved  is  so  exten- 
sive that  the  troops  now  on  duty  are  in- 
sufficient to  prevent  all  disorder.  The 
presence  of  the  entire  division,  national 
guard  of  Pennsylvania,  is  necessary  in 
these  counties  to  maintain  the  public  peace. 
The  major  general  commanding  will  place 
the  entire  division  on  duty,  distributing 
them  in  such  localities  as  will  render  them 
most  effective  for  preserving  the  public 
peace.  As  tumults,  riots,  mobs  and  dis- 
order usually  occur  when  men  attempt  to 
work  in  and  about  the  coal  mines,  he  will 
see  that  all  men  who  desire  to  work,  and 
their  families,  have  ample  protection.  He 
will  protect  all  trains  and  other  property 
from  unlawful  interference,  will  arrest  all 
persons  engaging  in  acts  of  violence  and 
intimidation,  and  hold  them  under  guard 
until  their  release  will  not  endanger  the 
public  peace,  and  will  see  that  threats,  in- 

^18 


MARTIAL    LAW. 

timidations,  assaults  and  all  acts  of  vio- 
lence cease  at  once.    The  public  peace  and 
good  order  will  be  preserved  upon  all  oc- 
casions and  throughout  the  several  coun- 
ties, and  no  interference  whatsoever  will 
be  permitted  with  officers  and  men  in  the 
discharge  of  their  duties  under  this  order. 
The   dignity   and   authority   of   the   state 
must  be  maintained,  and  her  power  to  sup- 
press all  lawlessness  within  her  borders  be 
asserted.'"  (20) 
It  will  be  seen  that  in  this  case  the  governor  did 
not  order    the  troops  to    report  to  the  sheriff  of 
Schuylkill  or  any  other  county.     Owing  to  the  ex- 
tent of  the  disturbance  he  ordered  a  division  into 
the  field  for  specific  duties.     This  order  relieved  the"^ 
commanding  officer  of  any  duty  to  consult  or  confer 
with  civil  authorities;  yet  it  was  only  an  authority 
to  exercise  qualified  martial  law  because  it  required 
the  division  to   do   certain  things   which  the  first 
troops  on  the  ground,  acting  in  aid  of  civil  authori- 
ties,  had   failed  to  accomplish.     No  military  dis- 
tricts were  established,  no  insurrection  was  declared 
and  the  entire  duties  of  no  civil  officer  were  discon- 
tinued. 

It  may  seem  from  the  foregoing  that  the  distinc- 
tion between  qualified  and  co-operative  martial  law 

(20)     Commonwealth  v.  Shortall,  206  Pa.  St.,  167; 
Sees.  119,  193. 

219 


MARTIAL    LAW. 

is  somewhat  confused.     In  order  to  make  the  dif- 
ference apparent  it  is  necessary  to  state  further  that : 

First.  Federal  troops,  under  the  regulations, 
may  exercise  co-operative  martial  law,  but  may  not 
exercise  qualified  martial  law.  This  is  because  the 
president  will  not  order  the  military  commander  to 
take  any  directions  from  civil  officers. 

Second.  State  troops  in  state  service  may  be 
ordered  to  do  certain  things  which  require  the  exer- 
cise of  martial  law  powers.  At  the  same  time  the 
governor  may  order  his  civil  officers  to  do  certain 
things  which  qualify  the  powers  exercised  by  the 
military  commander.  The  fact  that  this  was  not 
done  in  the  Pennsylvania  case  does  not  change  the 
rule. 

212.  Preventing  Violation  of  Statute. 
Where  civil  authorities  are  inclined  to  permit  an 
act  which  is  malum  prohibitum^  such  as  a  prize 
fight,  as  indicated  in  section  thirty-six,  and  the  gov- 
ernor decides  to  prevent  such  a  violation,  qualified 
martial  law  will  be  necessarily  used  by  a  military 
commander  unless  the  civil  authorities  withdraw 
their  permission  and  promise  to  obey  the  law.  In 
incidents  of  this  class  the  military  commander  will 
receive  a  specific  order  and  will  obey  it.  He  will 
use  only  such  force  as  is  necessary,  but  this  force 
is  an  exercise  of  qualified  martial  law. 

213.  Safe-conducts.     In  the  exercise  of  abso- 

220 


MARTIAL    LAW. 

lute  martial  law,  intercourse  between  a  certain  dis- 
trict and  the  surrounding  country  may  sometimes 
be  prohibited,  under  the  German  rule  that  every 
thing  not  permitted  is  forbidden.  It  will  then  be 
necessary  to  issue  safe-conducts  to  trustworthy  per- 
sons whose  lawful  business  requires  them  to  either 
go  to  or  from  the  isolated  territory.  (21)  These 
safe-conducts  should  be  numbered  and  registered. 

214.  Provost  Courts  may  be  established  dur- 
ing the  exercise  of  absolute  martial  law  to  relieve 
the  military  commission  of  certain  minor  functions. 
Their  jurisdiction  has  customarily  been  similar  to 
that  of  a  justice  of  the  peace  or  police  court.     (32) 

215.  Provost  Marshals.  Officers  may  be 
detailed  as  provost  marshals  for  matters  involving 
the  details  of  martial  law  administration  and  may 
be  supplied  with  certain  judicial  machinery  and 
made  judges  of  provost  courts  in  certain  districts. 
Orders  appointing  provost  marshals  usually  fully 
outline  their  duties  and  may  provide  for  provost 
guards  to  act  under  their  direction.  The  provost 
marshal  may  be  authorized  to  arrest  persons  accused 
of  certain  offenses,  and  to  perform  many  other  de- 
tails of  martial  law  administration.  He  may  be 
charged  with  the  care  of  all  prisoners,  prisons,  reg- 
ulation of  express  packages,  protection  of  certain 


(21)  See  par.  750,  Field  Ser.  Reg.,  1905. 

(22)  Winthrop's  Mil.  Law  &  Prec,  pages  1252-53. 

221 


MARTIAL    LAW. 

classes  of  property,  press  censorship,  railway  pas- 
senger control,  regulation  of  certain  business  houses 
and  numerous  other  matters.  In  state  service  he 
would  protect  the  U.  S.  mail  service  from  interrup- 
tion. In  federal  service  he  might  be  given  charge 
of  the  mails.      (23) 

216.  Provost  Officers  have  been  occasionally 
detailed,  and  so  designated,  to  perform  a  part  of  the 
duties  which,  by  the  customs  of  war,  have  been  in- 
trusted to  provost  marshals.  Where  a  military 
commission  can  attend  to  all  the  trials  necessary  in 
a  district  in  insurrection,  a  provost  officer  may  be 
detailed  with  ministerial  functions,  and  having  the 
same  relation  to  the  commission  that  a  judge  advo- 
cate bears  to  a  court-martial. 


(23)  "Among  the  many  orders  prescribing  their 
duties,  the  following  may  be  cited:  G.  O.  60,  188, 
Army  of  the  Potomac,  1862;  Do.  10,  Id.,  1863;  Do. 
35,  Dept.  of  the  Mo.,  1862;  Do.  22,  Dept.  of  the  South, 
1864;  Do.  146,  Dept.  of  the  Gulf,  1864;  Do.  23,  Dept. 
of  Kans.,  1864;  Do.  4,  and  Circ.  3,  Dept.  &  Army  of 
the  Tenn.,  1864;  Do.  65,  Dept.  of  La.,  1865;  Do.  1, 
Dept.  of  Miss.,  1865;  G.  Field  O.  3,  Army  &  Dept. 
of  West  Miss.,  1865;  Circ.  12,  Dept.  of  Va.,  1865." 
Winthrop's  Mil.  Law  &  Prec,  p.  247. 


222 


CHAPTER  EIGHTEEN. 


HABEAS  CORPUS. 


217.  Federal  Constitutional  Provisions. 
The  Constitution  of  the  United  States  provides  that : 
"The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  unless  when 
in  cases  of  rebellion  or  invasion  the  pub- 
lic safety  may  require  it."  (Art.  1.  Sec. 
9.) 

A  rebellion  has  been  legally  defined  as  an  exten- 
sive insurrection  in  which  the  insurgents  have  been 
accorded  recognition  by  a  foreign  nation.  To  illus- 
trate: if,  in  1897,  the  United  States  had  recognized 
the  Cuban  insurgents  by  dealing  with  them  official- 
ly, the  insurrection  in  the  island  of  Cuba  would 
have  become  a  rebellion  and  many  rules  of  inter- 
national law  would  have  been  invoked  in  adjusting 
the  rights  of  our  ships  in  Cuban  waters. 

So  that  the  constitutional  provisions  above 
quoted  seems  to  directly  negative  the  right  of  the 
president  and  of  a  governor  to  suspend  the  writ  of 
habeas  corpus  during  an  insurrection.  But  it  is 
probable  that  the  words  insurrection  and  rebellion 

223 


HABEAS    CORPUS. 

had  the  same  meaning  to  the  framers  of  the  con- 
stitution.     (1) 

Other  provisions  of  the  federal  constitution  bear 
upon  this  question.       Congress  has  power: 

Art  1.   Sec.   8.     "To  provide  for  call- 
ing forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections  and 
repel  invasions." 
And  the  president's  powers  are  thus  partly  de- 
fined : 

Art  2.  Sec.  1.  "The  executive  shall  be 
vested  in  a  President  of  the  United  States 
of  America." 

Art.  2.  Sec.  2.  "The  President  shall 
be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the 
militia  of  the  several  states,  when  called 
into  actual  service  of  the  United  States." 
Furthermore : 

Art.  4.  Sec.  2.  "The  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several 
states." 

Art.  4.  Sec.  4.  "The  United  States 
shall    guarantee    to    every    state    in    this 


(1)  See  Vol.  11,  Am.  &  Eng.  Ency.  of  Law  (1st 
Edn.)  p.  356;  Soule's  Diet,  of  Syn.,  226;  Anderson's 
Law  Diet. ;  Sec.  201. 

224 


HABEAS    CORPUS. 

Union  a  republican  form  of  government, 
and  shall  protect  each  of  them  against 
invasion;  and  on  application  of  the  legis- 
lature, or  of  the  executive  (when  the  leg- 
islature can  not  be  convened)  against  do- 
mestic violence." 

Second  Amendment.  "A  well  regula« 
ted  militia,  being  necessary  to  the  security 
of  a  free  state,  the  right  of  the  people  to 
keep  and  bear  arms,  shall  not  be  in- 
fringed." 

In  construing  these  provisions  collectively  the 
supreme  courts,  both  federal  and  state,  have  decided 
that  the  writ  may  be  properly  suspended  under  cer- 
tain circumstances  during  insurrections  and,  in  cer- 
tain cases,  during  the  exercise  of  qualified  and  co- 
operative martial  law.  These  circumstances  and 
cases  are  hereinafter  separately  indicated. 

218.  Habeas  Corpus  Defined.  This  writ 
does  not  begin  a  lawsuit  of  the  ordinary  descrip- 
tion. It  is,  in  fact,  an  order.  This  order  is  issued 
by  a  judge,  commanding  the  custodian  of  a  pris- 
oner to  bring  the  captive  before  the  court,  in  order 
that  the  court  may  inquire  into  the  cause  of  the 
confinement  and  either  order  the  man  released  or 
retained  by  such  custodian.  It  is  neither  a  criminal 
nor  an  equitable  action.  It  is  a  legal  remedy  founded 

235 


HABEAS    CORPUS. 

upon    a    writ    which    was    recognized    in    Magna 
Charta.      (2) 

219.  Suspension  of  Writ  Defined.  The 
suspension  of  the  writ  of  habeas  corpus  is  effected 
in  two  ways. 

1.  The  court,  to  whom  appHcation  is  made  for 
the  writ,  either  refuses  to  issue  it  or,  after  reading 
the  return  made  by  the  custodian,  decides  that  it 
has  no  jurisdiction. 

2.  The  custodian,  to  whom  the  writ  is  issued 
for  the  prisoner,  makes  return  on  the  writ  showing 
that  the  court  has  no  jurisdiction.  If  the  court  still 
insists  on  having  the  body  of  the  prisoner  before 
it,  the  custodian  resists  the  order  of  the  court. 

220.  In  Aid  of  Civil  Authorities.  The  v/rit 
of  habeas  corpus  is  not  suspended  while  troops  are 
acting  strictly  in  aid  of  the  civil  authorities.  All 
civil  officers  are  performing  their  customary  duties. 
The  courts  retain  their  usual  powers  and,  in  fact, 
have  greater  powers  than  usual.  For  they  may, 
in  certain  states,  command  the  military  officer  in 
suppressing  riots  and  enforcing  the  laws.  There- 
fore, under  these  circumstances,  the  writ  issued  to 
a  military  officer  will  be  obeyed  as  an  order  from  a 
superior. 


(2)  Ex  parte  Collier,  6th  O.  St.,  55;  In  re  Miller, 
1st  Daly,  562 ;  Spelling  on  Extraordinary  Relief,  Sec. 
1154. 

226 


HABEAS   CORPUS. 

221.  Under  Qualified  Martial  Law.     If  the 

qualified  martial  law  has  been  established  under 
such  an  order  as  is  set  forth  in  section  two  hundred 
and  eleven,  and  the  troops  are  specifically  directed 
by  the  governor  to  do  certain  things  and  not  per- 
mit interference  from  any  civil  officer:  it  is  prob- 
able that  under  proper  circumstances  prisoners  may 
be  held  by  the  military  officers  in  carrying  out  their 
orders. 

In  state  service  the  holding  of  prisoners  by  mili- 
tary officers  should  be  under  orders,  either  express 
or  directly  implied,  of  the  governor.  And  as  soon 
as  order  is  restored  the  alleged  offenders  must  be 
either  turned  over  to  the  civil  authorities  or  re- 
leased. It  is  customary,  however,  to  secure  the  aid 
of  civil  authorities  in  disposing  of  alleged  offenders. 
This  aid  may  be  secured  through  the  governor  in 
some  instances.  When  it  is  refused,  the  governor 
is  advised  of  the  situation  and  issues  the  necessary 
orders. 

222.  Under  Co-operative  Martial  Law  in 
State  Service.  Where  it  is  necessary  for  the  mil- 
itary officers  to  hold  prisoners,  and  orders  expressly 
empower  them  to  do  so,  the  writ  of  habeas  corpus 
is  suspended.  But  the  conditions  are  often  similar 
to  those  indicated  in  the  preceding  section.  If  such 
prisoners  are  so  held  and  a  writ  is  served  upon  the 
officer  in  charge  of  prisoners,  or  upon  the  command- 

227 


HABEAS    CORPUS. 

ing    officer,    he    should    immediately    make    return 
thereon  as  indicated  in  the  next  section. 

223.  Form  of  Return  on  Writ.  The  follow- 
ing form  for  return  on  writ  of  habeas  corpus  may 
be  used  in  proper  cases.  Its  use  is  limited  to  state 
courts,  state  troops  and  state  service,  but  it  is  readily 
changed  to  suit  other  conditions : 

COURT  OF  COMMON    PLEAS,    FRANKLIN 
COUNTY,  OHIO. 

In  re  )       On  Habeas  Corpus 

Richard  Roe  j  Return  of  Respondent. 

To  the  Honorable Ji-idge  of  the 

Court. 

The  respondent  in  the  hereinabove  entitled  action. 
Captain  Richard  Hull,  4th  Infantry,  O.  N.  G.,  upon 
whom  has  been  served  the  writ  of  habeas  corpus 
herein  issued,  respectfully  makes  return  to  the  same 
and  states  that  he  holds  the  said  Richard  Roe  by 
the  authority  of  the  State  of  Ohio  and  the  governor 
thereof,  under  circumstances  as  follows,  towit: 

That,  etc 

(Here  state   substance  of  governor's   order,   cause  of 

arrest,  and  reasons  for  holding  prisoner  in  custody. 

A  full  statement  is  necessary  so  that  the  court 

may  determine  the  jurisdictional  question). 

Wherefore,  without  intending  any  disrespect  to 
this  Court,  but  for  the  reason  that  he  is  advised  and 
believes  that    the    said    writ,    under    said    circum- 

228 


HABEAS   CORPUS. 

Stances,  should  not  be  enforced,  and  that  this  Court 
has  no  jurisdiction  in  the  premises  and  in  obed- 
ience to  the  order  of  

this  respondent  respectfully  declines 

to  produce  to  this  Court  the  body  of  the  said  Rich- 
ard Roe. 

RICHARD  HULL, 
Capt.  4th  Inf'y.  O.  N.  G. 
"Officer  in  Charge  of  Prisoner" 
or  "Provost  Marshal." 

224.     Illustration  Under  Co-operative  Mar- 
tial Law.     On  May  4th,   1899,  the  governor  of 
the  State  of  Idaho  issued  a  proclamation  of  which 
the  following  is  a  part: 
"State  of  Idaho,  Executive  Office. 

Whereas,  it  appearing  to  my  satisfaction  that 
the  execution  of  process  is  frustrated  and  defied  in 
Shoshone  county,  state  of  Idaho,  by  bodies  of  men 
and  others,  and  that  combinations  of  armed  men 
to  resist  the  execution  of  process  and  to  commit 
deeds  of  violence  exist  in  said  county  of  Shoshone ; 
and  whereas,  the  civil  authorities  of  said  county  of 
Shoshone  do  not  appear  to  be  able  to  control  such 
bodies  of  men,  or  prevent  the  destruction  of  prop- 
erty and  other  acts  of  violence,"  etc. 

This  proclamation  also  declared  that  a  state  of 
insurrection  existed   in   Shoshone    county.     Under 

229 


HABEAS    CORPUS. 

these  circumstances,  the  supreme  court  of  the  state, 

in  a  case  involving  these  facts,  held : 

"In  case  of  insurrection  or  rebellion,  the 
governor  or  military  officer  in  command, 
for  the  purpose  of  suppressing  the  same, 
may  suspend  the  writ  of  habeas  corpus,  or 
disregard  such  writ,  if  issued."      (3) 

225.  Under  Co-operative  Martial  Law  in 
Federal  Service.  Speaking  on  this  question,  the 
supreme  court  of  the  United  States,  in  a  noted  case 
which  grew  out  of  the  draft  riots  during  the  latter 
part  of  the  civil  war,  in  Indiana,  said : 

"The  power  to  make  the  necessary  laws 
is  in  Congress ;  the  power  to  execute,  in  the 
president.  Both  powers  imply  many  sub- 
ordinate and  auxiliary  powers.  EacJi  in- 
cludes all  authorities  essential  to  its  due 
exercise.  *  *  *  Congress  can  not  di- 
rect the  conduct  of  campaigns,  nor  can  tlie 
president,  or  any  commander  under  him, 
without  the  sanction  of  Congress,  insti- 
tute tribunals  for  the  trial  and  punish- 
ment of  offenses,  either  of  soldiers  or  civ- 
ilians, unless  in  case  of  a  controlling  neces- 
sity,   zvhicli    justifies    what  it  compels." 


(3)  In  re  Boyle  57  Pac,  706. 

(4)  Ex  parte  Milligan,  4  Wallace,  139. 

230 


HABEAS   CORPUS. 

Continuing,  the  court  illustrated  its  position  by 
holding  that,  under  co-operative  martial  law,  where 
the  courts  were  open,  it  was  not  always  safe  for  the 
military  commander  to  resort  to  such  courts  for 
trial,  using  the  following  language: 

"Courts  might  be  open  and  undisturbed 
in   the  execution  of  their  functions,  and 
yet  wholly  incompetent  to  avert  threatened 
danger,     or    to    punish,     with    adequate 
promptitude  and  certainty,  the  guilty  con- 
spirators.    *     *     *     jn    times    of    rebel- 
lion and  civil  war  it  may  often  happen, 
indeed,  that  judges  and  marshals  will  be 
in  active  sympathy  with  the  rebels,   and 
courts  their  most  efficient  allies."     (5) 
The  foregoing  statements  are  of  more  value  than 
ordinary  court  dicta  because  they  were  statements 
uttered  in  a  case  where  the  writ  was  enforced.     The 
writ  was  upheld  because  Indiana  was  a  loyal  state, 
no  insurrection  existed  and  a   federal  grand  jury 
had   failed  to  return  an  indictment  against  Milli- 
gan,  then  in  custody;  but  mainly  because  no  con- 
trolling necessity  for  suspending  it  existed. 

It  would  seem  from  the  foregoing  rules  that  the 
safer  plan  for  troops  in  federal  service,  exercising 
co-operative  martial   law,   would   be  to : 

First.     Turn  civilian  prisoners  over  to  the  state 


(5)     lb.,  140,  and  see  Sec.  246. 

231 


HABEAS   CORPUS. 

civil  authorities  for  trial  where  the  mihtary  com- 
mander is  satisfied  that  the  state  courts  are  able 
and  willing  to  conduct  the  trials  and  inflict  propei 
punishment.  These  prisoners  could  be  turned  over 
either  at  termination  of  the  tour  of  duty,  or  dur- 
ing the  time  of  the  military  occupation. 

Second.  Or  the  military  commander  may  fur- 
nish a  list  of  civilian  prisoners  to  the  next  federal 
grand  jury  in  the  district  and  if  any  fail  of  indict- 
ment he  may  advise  the  president  of  the  facts  and 
abide  by  his  order.  If  the  president  decides  that 
a  controlling  necessity  exists,  for  retention  in  cus- 
tody of  these  prisoners,  this  decision  is  final. 

Third.  Or  where  a  military  district  is  con- 
trolled by  a  military  provisional  government  under 
martial  law  and  the  president  has  found,  and  stated 
by  order,  that  it  is  necessary  for  the  restoration  of 
order  that  certain  civilian  prisoners  be  held  by  fed- 
eral troops,  this  order  may  be  safely  obeyed.      (G) 

226.  Under  Absolute  Martial  Law  in 
State  Service.  The  establishment  of  absolute 
martial  law  by  the  governor  or  the  proper  state  au- 
thorities carries  with  it  the  right  to  suspend  the 
writ  of  habeas  corpus  during  the  entire  time  that 
such  absolute  martial  law  is  exercised.     This  prin- 


(6)  Dow  v.  Johnson,  100  U.  S.,  158,  169,  170; 
r>eeland  v.  Williams,  131  U.  S.  405,  416;  in  re  Kemp, 
16  Wis.,  390;  Ford  v.  Surgett,  97  U.  S.,  594,  604; 
Judge  Grosscup's  charge,  62  Fed.,  828. 

232 


HABEAS   CORPUS. 

ciple  is  not  qualified  by  the  state  constitutional  pro- 
visions which  declare  that  the  military  shall  always 
be  subordinate  to  the  civil  power.  The  celebrated 
habeas  corpus  case  In  re  Moyer,  decided  in  1904, 
furnishes  the  following  statement  of  this  rule : 

"The  governor,  in  employing  the  militia 
to  suppress  an  insurrection,  is  merely  act- 
ing in  his  capacity  as  the  chief  civil  mag- 
istrate of  the  state,  and  although  exercis- 
ing his  authority  conferred  by  the  law 
through  the  aid  of  the  military  under  his 
command,  he  is  but  acting  in  a  civil  capa- 
city. In  other  words,  he  is  exercising  the 
civil  power  vested  in  him  by  law  through 
a  particular  means  which  the  state  has 
provided  for  the  protection  of  its  citizens. 
No  case  has  been  cited  where  the  precise 
cjuestion  under  consideration  was  directly 
involved  and  determined,  but  in  cases 
where  the  courts  have  had  occasion  to 
speak  of  the  authority  of  the  military  to 
suppress  insurrection  and  the  means  wdiich 
.  may  be  employed  to  that  end,  it  has  been 
stated  that  parties  engaged  in  riotous  con- 
duct render  themselves  liable  to  arrest  by 
those  engaged  in  quelling  it. 

To  deny  the  right  of  the  militia  to  de- 
tain   those  whom  they    arrest  while  en- 

233 


HABEAS    CORPUS. 

gaged  in  suppressing  acts  of  violence  and 
until  order  is  restored,  would  lead  to  the 
most  absurd  results."      (7) 
It  will  be  noted  that  this  decision  is  based  upon 
the  fact  that  the  governor  may  act  as  chief  execu- 
tive.    It  could  also  have  been  based  upon  the  fact 
that  the  governor  was  commander-in-chief  of  the 
militia.      Moreover,    the   martial    law   exercised   in 
this  instance  was  probably    only    co-operative,   so 
^that  the  rule  applies  with  even  greater  force  in  abso- 
lute martial  law. 

227.  Under  Absolute  Martial  Law  in  Fed- 
eral Service.  The  president,  under  the  consti- 
tutional provisions  shown  in  section  two  hundred 
and  seventeen  and  the  statutes  thereunder  shown 
in  section  forty-two,  has  the  now  undoubted  right 
to  suspend  the  v«rit  of  habeas  corpus  during  his  mili- 
tary occupation  of  a  district  in  insurrection.  But 
except  under  controlling  necessity,  or  in  exercising 
the  powers  conferred  by  the  federal  statutes,  this 
right  resides  in  congress.  Whenever  the  president 
may  exercise  this  right,  he  may  delegate  it  to  his 
military  commanders.     The  right  of  the  president 


(7)  In  re  Mover,  85  Pac,  190;  Citing  In  re  Kemp, 
IG  Wis.,  382  (413).  Luther  v.  Borden,  7  Howard, 
1 ;  Johnson  v.  Jones,  44  111.,  142.  The  right  to  sus- 
pend the  writ  in  the  Mover  case  was  established  under 
proclamations  very  similar  to  those  shown  at  Sees. 
142,  144. 

234 


HABEAS    CORPUS. 

to  suspend  the  writ  of  habeas  corpus  under  martial 
law  depends  upon  his  power  to  exercise  martial 
law.  The  exercise  of  absolute  martial  law  suspends 
the  writ.     (8) 

228.  State  Court  Writ  Suspended,  in 
Peace,,  in  Federal  Service.  A  writ  of  habeas 
corpus  was  issued  by  a  state  court  to  a  U.  S.  re- 
cruiting officer,  for  an  enlisted  man  alleged  to  be 
under  18  years  of  age  and  therefore  unlawfully  re- 
cruited. The  case  finally  (1871)  reached  the  su- 
preme court  of  the  United  States  where  it  was  held 
that  as  soon  as  the  officer  having  custody  of  the 
party  had  made  written  return  to  the  writ,  show- 
ing that  the  party  was  held  by  an  officer  of  the 
United  States,  under  authority  of  the  United 
States,  the  state  court  could  proceed  no  further  in 
th.e  matter,  for  the  state  court  had  no  jurisdiction 
to  issue  a  writ  for  discharge  of  the  party. 

The  principal  ground  for  this  opinion  seems  to 
be  that  the  state  court  could  not  construe  the  federal 
statutes  relating  to  enlistments  in  the  regular  army. 
This  writ  should  have  been  issued  from  a  federal 
court.     It  would  then  have  been  obeyed.      (9) 


(8)  Ex  parte  Field,  5  Blatchford,  82;  Winthrop's 
Mil.  Law  &  Free,  1291 ;  Birkhimer  Mil.  Gov.  &  Mar. 
Law,  378 ;  See  cases  cited  in  footnotes  to  Sec.  225. 

(9)  Tarbles'  Case  (13  Wallace,  397.) 


235 


CHAPTER  NINETEEN. 


TAKING  PRIVATE  PROPERTY. 


229.  In  Aid  of  Civil  Authorities,  military 
commanders  have  no  authority  to  take  private  prop- 
erty. But  a  military  necessity  may  possibly  arise 
under  these  conditions.  If  no  contracts  can  be 
made  for  subsistence,  it  may  be  necessary  to  de- 
mand that  the  civil  authorities  procure  provisions. 
If  this  demand  is  not  complied  with,  an  order  from 
the  governor  will  be  required  under  which  an  officer 
may  take  or  requisition  provisions,  giving  accurate 
receipts  for  whatever  is  procured.  State  officers  of 
the  general  staff  see  that  all  necessaries,  furnished 
to  state  troops,  are  paid  for.  Compensation  is  also 
fairly  made  for  all  damages  to  horses  and  other 
property  used.  If  personal  property  is  unnecessar- 
ily injured  or  abused  the  responsible  officer,  or  man, 
without  exception,  should  bear  the  burden  and  pun- 
ishment. But  the  state  may  act  as  his  surety  in 
indemnifying  the  person  who  has  been  damaged. 

In  every  instance  where  troops  are  required  to 
use  property  for  quarters  or  camp  sites,  public  prop- 
erty should  be  first  sought. 

230.  Under  Qualified  Martial  Law.  Mili- 
tary necessity  may  require  the  commanding  officer, 

236 


TAKING    PRIVATE    PROPERTY. 

on  rare  occasions,  to  take  private  property.  Such 
taking  would  only  be  justified  where  it  was  abso- 
lutely necessary  in  carrying  out  his  orders.  Wher- 
ever it  is  possible  to  make  contracts  for  necessaries, 
none  will  be  taken. 

The  hasty  construction  of  barricades  or  other  de- 
fensive works  is  often  necessary  to  save  lives  and 
valuable  property  and  it  seems  to  have  been  the 
custom  to  use  materials  nearest  at  hand  for  these 
purposes.  But  this  is  often  accomplished  by  con- 
sent of  the  owner,  for  this  very  property  may  be 
destroyed  if  not  so  used. 

Under  qualified  martial  law  the  action  of  troops 
is  occasionally  directed  tov/ard  one  class  of  persons 
and  only  certain  civil  officers  have  shown  weakness 
in  the  discharge  of  their  duties.  Property  of  these 
persons,  who  have  caused  the  disorder,  should,  if  its 
use  is  necessary,  be  first  requisitioned. 

231.  Under  Co-operative  Martial  Law.  If 
the  civil  authorities,  who  are  still  on  duty,  are  able 
to  furnish  necessary  supplies,  they  will  be  requested 
to  do  so  before  demand  is  made  on  other  civilians. 
Private  property  may  be  requisitioned  or  taken 
from  certain  classes  of  persons,  if  the  property  is 
absolutely  necessary  for  subsistence,  quarters,  shel- 
ter or  defense  of  the  troops,  or  for  hospitals.  The 
persons  from  whom  such  property  is  first  taken  are : 

1.     Persons  actively  engaged  in  the  insurrection. 

237 


TAKING   PRIVATE    PROPERTY. 

2.  Persons  giving  aid  and  comfort  to  those  so 
actively  engaged. 

3.  Persons  in  sympathy  with  the  insurgents. 
Mihtary   necessity   will   be  extreme  before  pro- 
ceeding further.      (1) 

232.  Under  Absolute  Martial  Law.  Nec- 
essaries may  be  taken  in  the  same  order  as  shown 
in  the  last  preceding  section.  This  is  practically 
following  the  federal  field  service  regulations.     (2) 

In  some  rare  instances  private  houses  may  be 
used  as  quarters.  These  instances  arise  where,  in 
extreme  weather,  use  of  such  habitations  is  abso- 
lutely necessary  to  preserve  the  men ;  and  where 
inhabitants   have   fled;   and   where   the   inhabitants 


(1)  A  military  officer  may,  without  liability,  take 
private  property  under  circumstances  of  pressing  pub- 
lic necessity.  Holmes  v.  Sheridan,  1  Dill.  (U.  S.) 
351,  12  Fed.  Cas.  No.  6,644,  holding  that  whether  the 
taking  of  such  property  is  justified  by  the  necessity  of 
the  case  is  a  question  for  a  jury.  And  see  Jacobs  v. 
Levering,  2  Cranch  (C.  C.)  117,  where  it  was  held 
that:  "A  commanding  officer  of  militia  has  no  au- 
thority to  impress  the  horse  of  a  citizen,  even  in  time 
of  war." 

(2)  Par.  710  Field  Ser.  Reg.,  1905;  Mills  on 
Eminent  Domain,  Sec.  3 ;  13  Am.  Law  Reg.,  265,  337, 
401.  The  taking,  injuring  and  destruction  of  prop- 
erty in  time  of  war,  is  an  exercise  of  power  allied  to 
the  common  law  right  of  civilians,  in  cases  of  emer- 
gency, where  the  danger  is  imminent  and  admits  of 
no  delay,  to  control  and  destroy  property  to  avert  a 
public  calamity.  Such  as  the  right  to  demolish  build- 
ings to  prevent  the  spread  of  a  conflagration.     The 

238 


TAKING    PRIVATE    PROPERTY. 

are  known  insurgents  and  under  surveillance.  (3) 
233.  Military  Control  Over  Property.  Un- 
der the  doctrine  of  postliminy,  no  disposition  of 
real  estate  may  be  made  by  military  authorities  un- 
less such  transfer  terminates  with  military  occupa- 
tion of  the  district.  (4)  The  exception  to  this 
rule  is  found  where  a  military  provisional  govern- 
ment executes  a  lease,  for  a  term  of  years,  for  cer- 
tain public  property.  In  a  case  in  New  Orleans  dur- 
ing the  civil  war  the  military  government  leased 
certain  public  property  for  ten  years.  The  civil  au- 
thorities resumed  control  of  the  government  a  few 
months  after  this  lease  was  made.  They  thereupon 
attempted  to  rescind  the  lease.  The  lessees  con- 
tested the  question  because  they  had  spent  large 
sums  in  improving  the  property.  The  supreme 
court  of  the  United  States  finally  decided  that  the 
lease  was  valid  and  should  subsist  for  its  full  term. 
(5) 


war  power  is  founded  on  analogous  necessity.  It  is 
not  an  exercise  of  the  right  of  eminent  domain.  Lewis 
on  Em.  Dom.,  Sees.  7,  8 ;  Russell  v.  Mayor  of  New 
York,  2  Denio,  461,  474;  2  Kent.  Com.,  338;  Bell  v. 
L.  &  N.  Ry.  Co.,  1  Bush   (Ky.)  40-1. 

(3)  Mitchell  v.  Harmony,  13  How.,  115. 

(4)  See  postliminum.  Burrill's  Law  Diet;  Birk- 
himer  Mil.  Gov.  and  Mar.  Law,  Sec.  228 ;  Davis'  In- 
ternational Law,  p.  266  et  seq. 

(5)  New  Orleans  v.  Steamship  Co.,  20  Wallace, 
387. 

239 


TAKING   PRIVATE   PROPERTY. 

The  military  commander  has  the  authority  of  a 
custodian  over  all  public  property  in  his  district, 
but  may  not  transfer  it  permanently.  Money  may, 
on  urgent  demand  and  by  properly  securing  author- 
ity, be  used  in  the  purchase  of  provisions  for  the 
troops  on  service  in  the  district.      (6) 

234.  Private  Property  of  Prisoners.  The 
commanding  officer  may  appoint  an  officer  in  charge 
of  prisoners  v^ho  may,  with  martial  law  prisoners, 
be  required  to  follow  military  law  as  follows: 

"He   (this  officer)   will  have  charge  of 
the  property,  money  and  valuables  belong- 
ing to  prisoners,  which  they  are  not  per- 
mitted to  keep  in  their  possession,  and  will 
disburse  said  money,  when  desired  by  the 
owner,  for  such  purposes  as  may  be  ap- 
proved by  the  commanding  officer."      (7) 
When  martial  law  is  being  exercised  in  a  military 
district  this  officer  in  charge  of  prisoners  may  per- 
form the  duties    mentioned,  with    other  functions, 
under  the  title  of  provost  marshal  or  provost  officer. 
335.     Destruction    of    Crops.     The    burning 
and  destruction  of  crops  and  supplies,  to  prevent 
their  falling  into  the  hands  of  the  enemy,  has  been 
authorized  on  the  ground  of  the  public  safety.    But 
this  rule  applies  only  to  insurrection  where  some 


(6)  9th  Article  of  War;  23  Opinions  Atty.  Gen'I., 
548. 

(7)  Par.   325   Man.   Gd.  Duty. 

240 


TAKING    PRIVATE    PROPERTY. 

of  the  insurgents  compose  anned  bands  and  these 
bands  are  in  the  field  against  governmental  troops. 
(8) 

236.  Ground  for  Encampments.  The  power 
to  take  property  does  not  include  the  power  to  en- 
camp on  the  private  lands  of  civilians  without  their 
consent  except  in  time  of  war.  (9)  But  the  ques- 
tion as  to  what  is  a  time  of  war  is  a  little  uncertain 
when  troops  are  suppressing  domestic  violence  and 
acting  independently  of  minor  civil  authorities.  Un- 
der qualified  martial  law  a  compelling  necessity 
might  require  troops  to  encamp  on  private  grounds 
against  the  protest  of  the  owner.  Such  encamp- 
ments should  not  be  made  unless  no  other  grounds 
in  the  neighborhood  can  be  obtained  by  agreement; 
and  instances  are  rare  in  which  it  will  be  necessary 
to  exercise  this  questionable  right.  This  is  so  for 
almost  every  occasion  finds  either  public  or  vacant 
property  available  and,  failing  these,  certain  persons 
are  nearly  always  ready  to  contract  for  the  tem- 
porary rental  of  suitable  camp  sites. 

237.  Provisions,  when  not  obtainable  under 
the  regulations,  or  by  contract,  are  obtainable  in  the 
following  order.  First,  by  requisition  on  civil  au- 
thorities. Second,  from  the  persons  and  in  the  or- 
der shown  in  section  two  hundred  and  thirty-one. 


(8)  Respublica  v.  Sparhawk,  1  DalL,  383. 

(9)  Brigham  v.  Edmands,  7  Gray,  359. 

241 


TAKING    PRIVATE    PROPERTY. 

It  is  unlawful  to  impress  provisions  when  there 
is  no  immediate  urgency.      (10) 

2'3S.  Compensation.  The  federal  government, 
during  the  late  civil  war,  enacted  several  statutes 
which  mitigated  the  harshness  of  the  ancient  rules 
relative  to  the  taking  of  private  property  by  armies. 
Compensation  was  generally  provided  for  property 
taken  or  occupied  in  the  loyal  states  during  the  civil 
war.  When  land  was  entered  upon  and  occupied, 
the  occupation  was  considered  to  be  under  an  im- 
plied lease,  at  a  reasonable  rental,  which  was  deter- 
mined by  an  appraisement.      (H) 

Prior  to  the  civil  war,  the  federal  congress  was 
besieged  by  applications  for  relief  in  cases  where 
citizens  had  lost  wagons,  horses,  mules,  harness  and 
other  property  in  transporting  detachments  of  the 
regular  army  throughout  parts  of  the  then  unde- 
veloped western  country.  This  private  property 
had  been  contracted  for  by  army  officers,  or  had 
been,  in  cases  of  urgency,  impressed  by  them,  and 
had  been  injured  or  destroyed  in  Indian  fights  and 
in  long  marches  over  wild  country  where  no  roads 
existed  and  forage  and  water  were  procurable  at 
such  irregular  intervals  as  to  cause  great  hardship. 


(10)  Cunningham  v.  Campbell,  33  Ga.,  G25 ;  Cox 
v.  Cummings,  Id.,  549;  Mitchell  v.  Harmony,  13 
How.,  115. 

(11)  Johnson  v.  United  States,  4  Ct.  of  CI.,  248; 
Waters  v.  United  States,  4  Ct.  of  CI.,  389. 

243 


TAKING    PRIVATE    PROPERTY. 

The  federal  congress  finally  evolved  a  plan  for 
proper  compensation  in  these  cases,  without  the  ne- 
cessity of  special  acts.  This  plan  consisted  in  mak- 
ing the  third  auditor  of  the  treasury  an  adjuster. 
(12)  Later  the  federal  court  of  claims  was  estab- 
lished and  relieved  both  the  auditor  and  congress 
of  the  duty  of  examining  into  the  merits  of  individ- 
ual claims  for  compensation.      (13) 

239.  Private  Property  of  Officers  and  En- 
listed Men.  The  federal  army  regulations  pro- 
vide specific  rules  under  which  compensation  may 
be  obtained  for  private  property  of  officers  and  men 
lost  under  specified  circumstances.  (14)  These 
rules  apply  to  militia  in  federal  service.  The  rules 
relative  to  such  compensation,  in  state  service,  are 
various;  but  many  states  closely  follow  the  federal 
plan  as  to  proof  of  loss.  These  proofs  are  filed  with 
the  adjutant  general,  who  is  usually  compelled  to 
embody  the  adjusted  claims  in  an  emergency  appro- 
priation bill,  and  introduce  it  in  (and  lobby  it 
through)  the  next  legislature. 


(12)  Act  of  Congress,  March  3rd,  1849. 

(13)  Act  of  February  24th,  1855,  10  Stat.  L.,  12; 
The  jurisdiction  of  the  court  of  claims  is  defined  in 
8  Wallace,  p.  269 ;  13  Wallace,  p.  136. 

(14)  Par.  729  A.  R.,  1904;  par.  334  Quartermas- 
ter's Man.,  1904. 


243 


CHAPTER  TWENTY. 


LIABILITY    OF    OFFICERS    UNDER    CIVIL 

LAW. 


240..  Protection  Afforded  by  Governor's 
Orders.  It  may  be  stated  as  a  general  proposition 
that  a  militia  officer  in  state  service  cannot  become 
liable  to  any  one  because  of  having  faithfully  and 
specifically  carried  out  the  written  orders  of  the  gov- 
ernor. The  exceptions  to  this  rule  are  extremely 
rare  and  may  occur  in  those  few  states  where  the 
governor's  executive  powers  are  curtailed  by  the 
constitution.  In  a  decision  of  the  supreme  court  of 
Pennsylvania,  two  paragraphs  of  the  syllabus  read 
as  follows : 

"The  governor  is  exempt  from  the  pro- 
cess of  the  courts  whenever  engaged  in 
any  duty  pertaining  to  his  office,  and  his 
immunity  extends  to  his  subordinates  and 
agents  when  acting  in  their  official  capa- 
city. 

The  governor  is  the  absolute  judge  of 
what  official  communications,  to  himself 
or  his  department,  may  or  may  not  be  re- 
vealed, and  is  the  sole  judge  not  only  of 

244 


LIABILITY    OF    OFFICERS. 

what  his  official  duties  are,  but  also  of  the 
time  when  they  should  be  performed."  (1) 
The  above  case  arose  out  of  the  Pennsylvania 
riots  of  July,  1877,  which  were  caused  by  a  strike 
of  railway  employes.  Militia  was  sent  to  open  a 
railroad.  Riot  ensued.  Strikers  and  militiamen 
were  killed.  Immense  properties  were  destroyed  by 
fire.  In  October,  1877,  a  grand  jury  of  Allegheny 
county  attempted  to  subpoena  the  governor,  adju- 
tant general  and  two  other  officers  of  the  militia. 

The  court,  in  deciding  that  the  grand  jury  had 
no  right  to  subpoena  these  officers,  said : 

"We  recognize  the  fact,  that  the  execu- 
tive department  is  a  co-ordinate  branch 
of  the  government,  with  power  to  judge 
what  should  and  should  not  be  done,  with- 
in its  own  department,  and  what  of  its 
own  doings  and  communications  should  or 
should  not  be  kept  secret,  and  that  with 
it,  in  the  exercise  of  these  constitutional 
powers,  the  courts  have  no  more  right  to 
interfere,  than  has  the  executive,  under 
like  conditions,  to  interfere  with  the 
courts." 

Many  of  the  foregoing  points,  decided  by  the 
syllabi  and  in  the  opinion,  are  of  considerable  value 
in  determining  the  conduct  of  officers  with  reference 


(1)     Appeal  of  Hartranft,  et  al.,  85  Pa.  St.,  433. 

245 


LIABILITY    OF    OFFICERS. 

to  civil  proceedings  after  the  conclusion  of  the  tour 
of  duty.  They  state  the  principles  under  which  the 
rule  first  herein  stated  was  evolved  by  the  courts. 

(2) 

This  section  should  be  read  in  connection  with 
sections  sixty-seven  and  sixty-eight  in  order  to  ob- 
tain a  full  view  of  the  governor's  executive  powers. 

241.  Necessity  for  Proof.  The  surest  method 
to  avoid  liability,  by  officers  commanding  troops  in 
home  service,  is  to  provide,  before  issuing  any  order 
that  may  be  questioned  in  the  future,  two  things : 


(2)  The  courts  cannot  compel  the  governor  to 
perform  any  duties  appertaining  to  his  ofifice ;  nor  can 
they  interfere  with  his  discharge  of  them,  nor  control 
him  in  any  matter  of  executive  discretion ;  State  of 
La.  ex  rel  v.  Warmouth,  Governor,  et  al.,  22  La.  Ann. 
Rep.,  1 ;  Mauran  xA-djt.  Gen'l.  v.  Smith,  Governor,  8 
R.  L  Rep.,  192;  The  People  ex  rel  v.  Bissell,  Gov- 
ernor, 19  Ills.,  229 ;  The  State  ex  rel  v.  Towns,  Gov- 
ernor, 8  Ga.,  360 ;  Hawkins  v.  Governor,  1  Ark.,  570 ; 
Mott  et  al.  v.  Penna.  Co.  et  al,  6  Casey,  33. 

The  legislative,  executive  and  judicial  departments 
of  the  government  are  distinct  and  independent,  and 
each  one  should  protect  itself  from  the  encroachments 
of  the  others  ;  De  Chastellux  v.  Fairchild,  3  Harris,  18  ; 
Greenough  v.  Greenough,  1  Jones,  489 ;  Ervines  Ap- 
peal, 4  Harris,  256  ;  Burns  v.  Clarion  County,  12  P. 

F.  Smith,  422 ;  Johnson  v.  Halloway,  6  Wright,  446. 

Every  department  of  the  government  has  its  secrets 
of  state,  or  privileged  communications,  which  it  is  not 
only  the  right  of  the  officer  to  refuse  to  disclose,  but 
his  duty  to  withhold,     1  Green'l  Ev.,  Sec.  250,  251. 

246 


LIABILITY    OF    OFFICERS. 

First.  That  proof  exists  which  shows  the  officer 
to  be  justified  in  giving  the  order. 

Second.  That  this  proof  will  be  available  if  it 
is  ever  needed. 

If  an  officer  is  justified  in  giving  an  order,  his 
right  to  issue  the  same  will  hardly  be  questioned 
afterwards,  in  a  criminal  or  civil  proceeding,  if  it 
is  known  that  the  officer  possesses  proof  showing 
his  justification.  The  importance  of  preparing  proof 
before  an  officer  takes  any  arbitrary  action  may  be 
illustrated  by  an  incident  of  the  Spanish  War.  It 
occurred  at  night  in  a  cavalry  camp.  The  officer 
of  the  day  was  making  his  rounds,  alone,  at  2 
o'clock  of  a  dark  night.  On  arrival  at  the  picket 
line  of  one  troop  he  was  not  challenged  by  the  sen- 
try. He  passed  around  the  foot  of  the  line  and 
came  towards  camp  between  this  picket  line  and  an 
adjacent  one  of  another  troop.  He  was  not  chal- 
lenged by  the  sentry  of  the  second  picket  line.  Pro- 
ceeding toward  the  forage  piles  he  discovered  both 
these  sentries  sound  asleep  upon  the  bales  of  hay. 
He  put  them  in  arrest,  confined  them  together  in  the 
guard  tent,  and  preferred  charges  the  next  day. 
The  prisoners  were  brought,  in  due  course,  before 
a  general  court-martial.  The  maximum  sentence 
was  death  as  the  offense  had  occurred  in  time  of 
war.  The  officer  told  the  facts,  as  a  witness,  to  the 
court.    The  defendants  both  testified  that  they  were 

247 


LIABILITY    OF    OFFICERS. 

exchanging  notes  concerning  a  stray  horse  when  the 
officer  of  the  day  arrested  them.  That  they  had  not 
been  asleep,  but  liad  failed  to  notice  the  approach 
of  the  officer  because  of  their  discussion  about  the 
horse.  Thus  the  evidence  stood,  two  witnesses  for 
defendant  and  one  for  the  United  States.  It  is 
easy  to  guess  the  conclusion  and  the  discomfiture  of 
the  officer  under  the  circumstances. 

242.  In  Aid  of  Civil  Authorities.  When 
state  troops  are  ordered  into  state  service  by  a 
minor  civil  authority,  and  wdien  state  troops  are  or- 
dered by  the  governor  to  report  to  a  minor  civil 
authority  and  act  under  him,  the  commanding  of- 
ficer's responsibility  includes  two  things : 

First.  He  must  not  execute  any  order  which  is 
beyond  the  powers  of  the  civil  authority.  This 
same  civil  officer  may  be  one  of  several  whose  func- 
tions are  co-ordinate. 

Second.  He  must  not  go  beyond  the  orders  of 
the  civil  authorities  and  do  things  on  his  own  re- 
sponsibility. In  other  words,  he  may  only  carry 
out  orders  received  from  the  civil  officer. 

Under  the  first  limitation  he  must  know  what  the 
powers  of  the  civil  authorities  are,  or  take  chances 
on  the  order  being  valid.  The  general  powers  of 
these  civil  authorities  have  been  outlined  in  chapter 
nine.  In  riot  duty  the  statute  of  the  state  com- 
monly provides   that   peace  officers   have,   for  the 

348 


LIABILITY    OF    OFFICERS. 

emergency,  extraordinary  powers.  (3)  This  riot 
statute  should  be  famihar  to  the  officer.  He  must 
not  construe  it  too  liberally,  because  while  in  gen- 
eral terms  it  seems  a  justification  for  severe  meas- 
ures; the  question  of  whether  or  not  these  measures 
were  unnecessarily  severe  under  the  circumstances 
is  sometimes  left  to  a  jury.  And  it  may  therefore 
be  necessary  to  furnish  proof,  in  a  subsequent  civil 
law  proceeding,  that  a  certain  drastic  action,  taken 
by  the  troops,  was  only  a  necessary  exercise  of 
force  under  the  circumstances.  If  this  proof  is 
available,  the  officer  has  still  been  put  to  the  trouble 
of  producing  it  and  using  time  and  money  in  justi- 
fying an  action  which  he  thought  was  for  the  pub- 
lic good.  But  the  occasions  just  mentioned  are  ex- 
tremely rare  and  may  be  easily  avoided.  Whenever 
an  officer  is  ordered  to  do  something,  and  doubts 
the  authority  of  the  civil  officer  who  gave  the  or- 
der, he  should  report  to  the  governor  and  get  a 
direct  order  from  him.  If  there  is  not  time  to  do 
this — the  fact  that  there  is  not  time  may  be  suffi- 
cient justification  for  obeying  the  order. 

Under  the  second  limitation  the  officer  may  re- 
quire the  civil  officer  to  give  definite  orders  as  to 
what  general  duties  are  to  be  performed.  These 
orders  should  be  in  writing  or  in  the  presence  of 
witnesses.  They  should  then  be  obeyed  without 
using  unnecessary  force. 


(3)     See  Sec.  116. 

249 


LIABILITY    OF    OFFICERS. 

Self-defense  includes  the  right  of  an  officer,  even 
acting  under  civil  officers,  to  take  whatever  action 
is  necessary  to  defend  his  men  and  himself  from 
injury  or  death.  But  here,  also,  no  unnecessary 
force  may  be  used. 

It  will  seem  from  the  foregoing  outline  that  act- 
ing in  aid  of  civil  authorities  may  be  no  sinecure. 
It  is  one  of  the  necessary  duties  of  the  militia  in 
state  service,  but  is  not  required  in  federal  service 
of  either  militia  or  the  regular  army.  The  limita- 
tions imposed  in  this  service  are  avoided  by  the  gov- 
ernor taking  charge  of  the  situation. 

The  validity  of  an  order  received  is  easily  deter- 
inined.  It  is  not  necessary  to  absolutely  know  that 
an  order  is  lawful.  It  may  be  assumed  that  the 
order  is  lawful  unless  the  officer  has  forcible  reason 
to  believe  that  it  is  unlawful.  (4)  In  fact,  the 
only  real  danger,  in  service  in  aid  of  civil  authori- 
ties, arises  where  all  the  civil  authorities  are  not 
in  accord.  Instances  of  this  disaccord  are  indicated 
in  chapters  nine  and  ten  and  the  rules  there  laid 


(4)  Persons  who  act  in  aid  of  a  sheriff,  by  the 
sheriff's  command,  arc  justified,  though  the  sheriff 
himself  has  abused  his  authority,  provided  they  acted 
in  good  faith  in  obedience  to  his  command,  and  not 
to  gratify  his  or  their  malice.  State  v.  Stalcup,  2 
Ired.  L.  (24  N.  Car.)  50;  Com.  v.  Field,  13  Mass., 
321;  Thrailkill  v.  Daily,  16  Nebr.,  114.  These  per- 
sons were  civilians. 

250 


LIABILITY    OF    OFFICERS. 

down  indicate,  in  cxtenso,  the  officer's  liability  in 
the  performance  of  this  duty. 

Civil  oflicers  must  at  all  times  be  treated  with 
proper  respect.  The  civil  courts,  except  under  mar- 
tial law,  must  not  be  interfered  with.  A  case  is 
reported  in  Ohio  where  a  militia  officer  was  cited 
for  contempt  because  he  held  muster  in  the  imme- 
diate vicinity  of  the  court  in  session.  This  event 
occurred  about  1834.  The  citation  was  probably 
caused  by  the  militia  officer  failing  to  heed  the  re- 
quest of  the  court  bailiff  to  stop  the  music. (5) 

243.  State  Riot  Statutes,  Oppressive  Acts. 
In  Despan  v.  Olney,  (6)  a  military  officer,  who  had 
acted  under  orders  of  the  commanding  general,  was 
sued  for  arresting  and  confining  the  plaintiff.  The 
state  was  then  under  martial  law,  and  the  defendant 
pleaded  a  statute  which  barred  all  actions,  for  acts 
done  while  the  state  was  under  martial  law,  pro- 
vided such  acts  were  intended  to  preserve  the  peace, 
and  to  aid  the  people  and  government  against  the 
open  or  suspected  hostility  of  the  person  complain- 
ing. Issue  was  joined  upon  the  averment  of  the 
plea  that  the  act  in  question  was  done  with  that  in- 
tent. Judge  Curtis  instructed  the  jury,  in  part,  as 
follows : 


(5)  Wright's  Reports,  78  Id..  421. 

(6)  1  Curt,  308,  Fed.  Cas.  No.  3,822.  And  see  In 
re  Ezeta.  G2  Fed.,  972;  Luther  v.  Borden,  7  How. 
(U.  S.)  1. 

251 


LIABILITY    OF    OFFICERS. 

"It  is  enough  to  say  that,  under  the 
issue  you  are  trying,  the  existence  of  mar- 
tial law  is  not,  of  itself,  a  justification  of 
the  defendant.  He  must  also  satisfy  you 
that  the  act  done  by  him,  under  that  law, 
was  intended  by  him  to  preserve  the  peace 
of  the  state,  and  to  aid  the  existing  gov- 
ernment, and  not  from  recklessness,  or  a 
love  of  power,  or  to  gratify  any  bad  pas- 
sion. Still,  the  fact  that  martial  law  ex- 
isted has  a  most  important  bearing  on  the 
question  of  the  intent  of  the  defendant. 
He  held  a  commission  as  captain.  He  re- 
ceived an  order  from  his  commander.  He 
was  bound  to  obey  all  lawful  orders.  And 
if  this  order  was  one  which,  upon  its  face, 
was  lawful,  and  he  did  no  more  than  exe- 
cute it,  you  will  consider  whether  it  would 
not  be  proper  to  conclude  that  he  acted 
simply  with  an  intent  to  do  his  duty,  un- 
less some  other  intent  appears.  Now,  as 
martial  law  existed,  and  as  Major  Gen- 
eral Anthony  had  authority  under  that 
law,  for  sufficient  cause  known  to  him,  to 
cause  the  arrest  of  the  plaintiff,  the  order 
to  do  so  was,  upon  its  face,  a  lawful  or- 
der. And  I  do  not  think  the  defendant 
was  bound   to  go  behind  an  order,  thus 

252 


LIABILITY    OF    OFFICERS. 

apparently  lawful,  and  satisfy  himself,  by 
inquiry,  that  his  commanding  officer  pro- 
ceeded upon  sufficient  grounds.  To  re- 
quire this  would  be  destructive  of  military 
discipline,  and  of  the  necessary  prompt- 
ness and  efficiency  of  the  service." 

244.  Under  Qualified  Martial  Law.  The 
orders  from  the  governor  indicate  the  duties  to  be 
performed  and  give  the  commanding  officer  dis- 
cretionary powers  as  to  the  performance  of  these 
duties.  His  orders  are  necessarily  limited  to  carry- 
ing out  the  orders  of  the  governor.  His  liability 
has  been  defined  as  follows : 

"Except  in  a  plain  case  of  excess  of  au- 
thority, where  at  first  blush  it  is  appar- 
ent and  i^alpable  to  the  commonest  under- 
standing that  the  order  is  illegal,  I  can- 
not but  think  that  the  law  will  excuse  a 
military  subordinate,  when  acting  in 
obedience  to  the  order  of  his  commander. 
Otherwise,  he  is  placed  in  a  dangerous 
dilemma  of  being  liable  to  damages  to 
third  persons,  for  obedience  to  the  order, 
or  for  the  loss  of  his  commission,  and  dis- 
grace for  disobedience  thereto.  *  *  * 
Between  an  order  plainly  legal  and  one 
palpably  otherwise  there  is  a  wide  middle 
ground   where  the  ultimate    legality  and 

253 


LIABILITY    OF    OFFICERS. 

propriety  of  orders  depends  or  may  de- 
pend upon  circumstances  and  conditions, 
of  which  it  cannot  be  expected  that  the 
inferior  is  informed  or  advised.  In  such 
cases  justice  to  the  subordinate  demands, 
and  the  necessities  and  efficiency  of  the 
public  service  require,  that  the  order  of 
the  superior  should  protect  the  inferior, 
leaving  the  responsibility  to  rest  where  it 
properly  belongs,  upon  the  officer  who 
gave  the  command."     (7) 

Orders  being  relied  upon,  under  the  foregoing 
rule,  the  only  liability  which  the  officer  may  incur, 
is  in  the  execution  of  these  orders.  In  such  execu- 
tion he  is  safe  if  he  acts  with  intent  to  obey  the 
order  and  not  from  recklessness,  or  a  love  of  power, 
or  to  gratify  any  bad  passion.  Therefore,  as  a  gen- 
eral rule,  if  an  officer  acts  solely  with  intent  to  obey 
his  orders  he  is  not  responsible  for  the  conse- 
quences.     (8) 


(T)  McCall  v.  McDowell,  1st  Abb.  (U.  S.)  213; 
Commonwealth  v.  Shortall,  206  Pa.  St.,  165. 

(8)  In  England  it  has  been  repeatedly  held  that  no 
civil  action  will  lie  in  the  first  instance  against  a  com- 
missioned officer  for  a  discretionary  exercise  of  mili- 
tary authority  while  in  the  performance  of  official 
duties.  If  the  authority  be  discretionary,  questions  re- 
garding its  exercise  are  so  essentially  military  that  the 
English  civil  tribunals  decline  to  consider  them  with- 

254 


liability  of  officers. 

245.  Protection  Afforded  by  President's 
Orders.  Orders  of  the  president  have  a  much 
wider  scope  than  those  of  a  governor.  They  may 
require  the  overthrow  of  an  entire  state  govern- 
ment and  the  institution  of  a  provisional  govern- 
ment to  exist  until  another,  such  as  is  guaranteed 
by  the  federal  constitution,  is  formed.  Yet  the  war 
power  of  the  nation  is  divided  between  the  president 
and  congress.  Because  of  this  division  congress 
invested  the  president  with  the  powers  indicated  in 
the  statutes  shown  at  section  forty-two.  These 
statutes  provide  the  powers  under  which  the  presi- 
dent acts  in  insurrections  and  in  enforcing  the  laws 
of  congress.  Under  these  statutes  the  president's 
powers  are  supreme  and  his  orders  have  the  same 
force  and  are  hedged  about  by  the  same  safe-guards 
as  are  indicated,  with  reference  to  a  governor's 
powers,  in  section  two  hundred  and  forty. 

246.  Officers  Discretionary  Powers.  Fed- 
eral Service.  In  application  of  the  foregoing 
rule  federal  military  officers  have  occasionally  made 
the  mistake  of  using  martial  law  powers  where  mar- 
tial law  was  not  being  exercised.  An  instance  of 
this  kind  occurred  in  Indiana  during  the  civil  war. 
A  provost  marshal  ordered    civilian    saloonkeepers 

out  the  previous  judgment  of  a  court  martial.  Pen- 
dergrast,  p.  138;  Birkhimer,  Sec,  583;  Barnis  v. 
Keppel,  2  Wilson,  p.  314;  Sutton  v.  Johnson,  1  Term 
Reports,  548. 

255 


LIABILITY   OF   OFFICERS. 

not  to  sell  liquor  to  soldiers.  One  disobeyed  and 
was  taken  into  military  custody.  Growing  out  of 
this  and  similar  facts  the  civil  courts  proclaimed 
the  following  rule : 

"A  military  officer,  acting  under  instruc- 
tions from  his  superiors,  acts  at  his  peril, 
and,  if  those  instructions  are  not  strictly 
warranted   by   law,    he    is   answerable    in 
damages  to  any  person  injured  by  their 
execution."     (9) 
While  this  rule  is  often  cited  it  is,  as  a  general 
proposition,  not  good  law.     It  should  be  confined 
to  the  case  which  caused  its  utterance.     It  was  good 
there  because  the  provost  marshal  had  no  martial 
law  powers  in  the  loyal  state  of  Indiana  and  there 
was  no  insurrection    or  military    occupation.     He 
probably  only  had  military  !aw  powers  over  troops 
in  a  certain  district. 

An  officer  of  the  United  States  army,  while  act- 
ing in  the  discharge  of  his  duty,  in  obedience  to  or- 


(9)  Griffin  v.  Wilcox,  (18G3)  21  Ind.,  370;  Hogue 
v.  Penn,  3  Bush  (Ky.)  663.  96  Am.  Dec,  274;  Ter- 
rill  V.  Rankin,  2  Bush  (Ky.)  453,  92  Am.  Dec,  500; 
Eifort  V.  Bevins,  1  Bush  (Ky.)  460;  Mitchell  v.  Har- 
mony, 13  How.  (U.  S.)  115;  14  L.  ed.  75  (affirming 
1  Blatchford  (U.  S.)  549,  11  Fed.  Gas.  No.  6,082)  ; 
Little  V.  Barreme,  2  Cranch  (U.  S.)  170;  2  L.  ed., 
243;  McCall  v.  McDowell,  1  Abb.  U.  S.,  212;  Clay 
V.  U.  S.  Dev.  Ct.  CI,  25. 

256 


LIABILITY    OF   OFFICERS. 

ders  of  the  secretary  of  war,  who  in  turn  is  execut- 
ing an  act  of  congress,  is  not  subject  to  arrest  on  a 
warrant  or  order  of  a  state  court.  In  such  a  case 
an  officer  can  obtain  his  discharge  by  habeas  corpus 
issued  from  a  federal  court.      (10) 

But  this  rule  raises  a  question  as  to  what  acting 
in  the  discharge  of  the  officers  duty  means.  On 
January  2,  1906,  the  supreme  court  of  the  United 
States  rendered  a  decision  which  answers  the  ques- 
tion concerning  the  duty  in  time  of  peace.  An  of- 
ficer and  an  enhsted  man  in  the  mihtary  service  of 
the  United  States  were  indicted  for  murder  and 
held  for  trial  in  a  state  court.  At  their  station, 
Allegheny  Arsenal,  these  two  had  been  ordered  to 
hunt  for  civilians  who  had  been  stealing  copper  eave 
troughs  from  arsenal  buildings.  One  morning  they 
tried  to  catch  a  person  in  the  act.  They  left  the 
U.  S.  grounds  and  came  upon  this  civilian,  Crow- 
ley, from  difTerent  directions.  Crowley  ran  and 
was  shot  and  killed  by  the  enlisted  man.  At  this 
time  none  of  the  three  were  on  the  U.  S.  reserva- 
tion. There  was  disputed  testimony  tending  to  show 
that  Crowley  stopped  and  held  up  his  hands  and 
that  the  officer  thereupon  ordered  the  enlisted  man 


(10)  In  re  Turner,  119  F.  231;  In  re  Neagle,  135 
U.  S.,  1,  10  S.  Ct.  658.  34  L.  ed.,  55 ;  Ohio  v.  Thomas, 
173  U.  S.  2?6,  19  S.  Ct.  453,  43  L.  ed..  689rSec.  761 
U.  S.  Rev.  Stat.;  In  re  Waite,  81  Fed.  Rep.,  359. 

357 


LIABILITY   OF   OFFICERS. 

to  fire.  Under  these  facts  the  supreme  court  of  the 
United  States  finally  decided  that  its  circuit  court 
had  properly  declined  to  wrest  the  petitioners,  on 
habeas  corpus,  from  the  custody  of  the  state  officers 
in  advance  of  trial  in  the  state  court.  (11)  In 
this  case  the  unfortunate  young  officer  made  the 
mistake  of  using  questionable  martial  law  powers 
in  time  of  peace.  Notwithstanding  this,  if  Crow- 
ley had  committed  a  felony,  and  had  been  shot 
while  fleeing,  the  United  States  court  would  have 
taken  these  two  prisoners,  on  habeas  corpus,  from 
the  state  court.  It  therefore  behooves  any  officer, 
federal  or  state,  civil  or  military,  to  be  careful  of 
his  legal  status  in  determining  what  his  powers  are 
under  general  directions  from  a  superior. 

After  determining  the  legal  status  and  that  mar- 
tial law  is  being  exercised,  the  officer's  discretionary 
powers  are  identical  with  those  outlined  in  section 
two  hundred  and  forty-four. 

247.  Under  Co-operative  Martial  Law  in 
Federal  Service.  It  often  happens,  in  this  serv- 
ice, that  the  moral  effect,  on  the  insurgents,  of  the 
presence  of  federal  troops,  is  alone  sufficient  to  en- 
able the  civil  authorities,  or  state  troops,  to  regain 
control  of  the  situation.  Under  such  circumstances 
the  exercise  of  force  by  federal  troops  is  sometimes 
unnecessary.     Where  it  is  necessary  it  may  be  suf- 


(11)     Drury  v.  Lewis,  Jail  Warden,  200  U.  S.,  1. 

258 


LIABILITY   OF   OFFICERS. 

ficient  to  accomplish  desired  results,  as  indicated 
in  the  officer's  orders.  During  the  performance  of 
this  duty,  civil  state  courts  cannot  interfere  with 
either  officers  or  men.  (12)  At  termination  of 
the  duty  the  federal  troops  may  be  removed  from 
the  state.  (13)  If  they  remain  on  duty  in  the 
state  their  liabilities  are  those  indicated  in  the  next 
section. 

248.  Under  Co-operative  Martial  Law  in 
State  Service.  No  officer  is  liable  for  the  proper 
performance  of  duty,  under  orders,  if  he  carries  out 
his  orders  with  intent  solely  to  perform  that  duty 
and  does  not  plainly  exceed  his  authority.      (14:) 

He  is  not  liable,  as  just  stated.  But  on  rare  occa- 
sions he  may  be  required  to  prove  that  he  is  not 
liable.  These  occasions  arise  when  he  is  charged 
with  a  crime  under  civil  law  or  is  sued  for  damages 
in  a  civil  court.  Access  to  grand  juries  and  to 
courts  of  law  is  easy.  No  officer  can  absolutely  pre- 
vent the  action  of  a  grand  jury,  the  filing  of  an 
affidavit  for  warrant  or  of  a  petition  for  damages. 
But  he  can  reach  an  irreducible  minimum  of  trou- 
ble by  properly  qualifying  himself  for  the  perform- 
ance of  his  duties,  keeping  cool  and  always  arrang- 
ing for  proof  of  justification. 


(12)  See  Sec.  246. 

(13)  See  Sec.  178. 

(14)  See  chaps.  17  and  18. 

259 


LIABILITY    OF   OFFICERS. 

249.     Under    Absolute    Martial  Law.     The 

iiltiiiiale  liabilities  of  officers  are  the  same  as  those 
outlined  in  the  two  preceding  sections,  but  their 
discretionary  powers  are  often  very  much  greater. 
The  commanding  otificer  is  the  head  of  a  provisional 
government.  His  territory  is  bounded  by  the  mili- 
tary district  occupied  by  his  troops.  He  must  sup- 
ply the  functions  of  the  missing  civil  officials,  es- 
tablish courts  of  justice,  bring  about  domestic  tran- 
quility and  ultimately  secure  the  blessings  of  lib- 
erty to  those  civilians  who  have  so  far  forgotten 
the  requirements  of  civilization  as  to  lapse  into  an- 
archy. These  are  the  most  important  duties  with 
which  man  can  be  intrusted.  Their  performance 
therefore  requires  the  exercise  of  experienced  judg- 
ment by  the  commanding  officer.  His  military  com- 
missions, in  dispensing  justice,  may  do  well  to  re- 
member Blackstone's  famous  eulogy  on  the  law ; 
that  law  is : 

"A  science  which  distinguishes  the 
criterions  of  right  and  wrong,  which 
teaches  to  establish  the  one  and  to  prevent, 
punish,  or  redress  the  other,  which  em- 
ploys in  its  theory  the  noblest  faculties  of 
the  soul,  and  exerts  in  its  practice  the  car- 
dinal virtues  of  the  heart.  A  science 
which  is  universal  in  its  use  and  extent; 

260 


LIABILITY   OF   OFFICERS. 

adapted  to  each  individual,  yet  compre- 
hending the  whole  comm'inity." 
Under  martial  law  this  maxim  may  be  applied 
to  those  civilians  who  evidence  a  genuine  intention 
of  helping  to  restore  civil  government.  And  yet, 
as  has  been  said  in  section  two  hundred  and  seven, 
it  is  more  necessary  to  exercise  deterrent  influences 
in  the  administration  of  martial  law  than  in  that  of 
civil  law.  i\roused  passions  can  often  be  restrained 
only  through  fear.  Where,  in  dealing  with  certain 
elements  of  the  community,  it  is  necessary  to  inspire 
fear,  the  necessary  force  may  be  lawfully  applied 
under  the  usages  and  customs  of  war. 

250.  For  Unnecessary  Violation  of  Stat- 
ute. In  a  case  decided  in  Xew  York  in  1814,  it 
was  held  that  a  militia  captain  was  liable,  in  a  stat- 
utory penalty,  for  ordering  an  assembly  of  his  com- 
pany on  election  day,  in  violation  of  a  statute  pro- 
hibiting assembly  on  that  day.  It  was  also  held 
that  the  captain  was  not  protected,  in  such  case,  by 
the  order  of  his  colonel.  (15)  This  decision  was 
in  time  of  peace. 

251.  For  Necessaries  for  Troops.  Where  a 
commanding  officer  is  lawfully  exercising  martial 
law  powers,  and  his  duties  require  the  troops  to  do 
certain  things,  and  the  troops  must  have  food,  for- 
age and  shelter  to  enable  them  to  do  these  things. 


(15)      Hyde  v.  Marvin.  11  Johns.  (X.  Y.)  521. 

261 


LIABILITY   OF   OFFICERS. 

and  these  necessaries  cannot  be  otherwise  obtained 
than  from  civiHans;  the  officer,  on  showing  all  of 
these  conditions,  is  relieved  from  any  personal  re- 
sponsibility for  the  taking  of  such  necessaries  in 
quantities  sufficient  to  supply  .urgent  needs.     (16) 

252.  For  Property  Strategically  Destroyed. 
The  right  to  destroy  property  to  prevent  its  fall- 
ing into  the  hands  of  the  enemy  must  be  cautiously 
exercised  under  martial  law.  In  such  case  the  of- 
ficer acts  on  his  own  responsibility  except  where 
express  orders  have  been  received.  If  he,  without 
orders,  gives  an  order  to  destroy  private  property, 
acting  under  a  reasonable  apprehension  that  his  or- 
der was  necessary  for  the  public  safety,  and  acting 
on  information  on  which  he  had  a  right  to  rely, 
the  destruction  is  justifiable  and  the  loss  is  the 
owner's  misforune.  The  officer  is  personally  re- 
sponsible unless  his  order  w^as  justified.      (17) 

253.  For  Trespass  by  Subordinate.  A  per- 
son in  command  is  not  liable  for  a  trespass  com- 
mitted by  any  of  his  command  without  his  knowl- 
edge or   abetment.      (18)      But,    it   he   advises   or 


(16)  See  citations  in  chapter  19. 

(17)  Lewis  on  Eminent  Domain,  Sec.  8;  Alitchell 
v.  Harmony,  13  How.,  115 ;  Farmer  v.  Lewis,  1  Bush 
(Ky.)  66;  Dills  v.  Hatcher,  6  Bush,  606. 

(18)  Witherspoon  v.  Farmers  Bank,  2  Duv. 
(Ky.)  496,  87  Am.  Dec,  503;  Echols  v.  Stanton,  3 
W.  Va.,  574. 

262 


LIABILITY   OF   OFFICERS. 

aids  such  trespass,  the  fact  that  he  was  so  acting 
is  no  defense.      (19) 

254.  In  Pari  Delicto.  The  following  inter- 
esting decision,  in  1869,  grew  out  of  the  civil  war 
conditions. 

"The  courts  of  one  of  the  seceded  states 
cannot,  since  the  re-establishment  of  the 
national  authority,  entertain  an  action  to 
recover  damages  from  a  railroad  com- 
pany for  negligently  causing  death  of 
plaintiff's  husband,  where  the  casualty  oc- 
curred while  the  company  was  transport- 
ing the  decedent,  as  an  officer  in  the  con- 
federate service,  for  hire  paid  by  the  con- 
federate government.  The  employes  of 
the  company  and  the  decedent  were,  while 
engaged  in  such  transportation,  in  pari 
delicto."     (20) 

255.  For  Frauds  in  Service.  A  United 
States  district  court  has  jurisdiction  to  indict  and 
try  a  person  charged  with  having  forged  an  obliga- 
tion of  the  United  States  with  intent  to  defraud, 
which  is  made  an  offense  against  the  United  States 
by  Rev.  Stat.  Sec.  5414  (U.  S.  Comp.  St.  1901,  p. 
3662),  although  he  was  at  the  time  an  officer  of 


(19)  Smith  v.   Shaw,   12  Johns.     (N.    Y.)     257; 
Echols  v.  Stanton,  3  W.  Va.,  574. 

(20)  Martin  v.  Wallace,  40  Ga.,  52. 

263 


LIABILITY   OF   OFFICERS. 

the  army,  and  the  alleged  offense  was  committed 
at  a  military  post,  and  with  intent  to  defraud  an 
enlisted  soldier,  wdiere  the  accused  has  since  been 
discharged  from  the  army  without  any  action 
against  him  having  been  taken  by  the  military  au- 
thorities; there  being  no  provision,  either  consti- 
tutional or  statutory  conferring  exclusive  jurisdic- 
tion on  courts-martial  to  punish  such  offense.  (21) 
256.  In  Suit  by  Soldier.  In  the  case  of  a 
marine  necessarily  held  on  board  ship  after  expira- 
tion of  his  term  of  enlistment  the  court  said: 

"An  ofificer  is  not  answerable  for  an 
injury  done  within  the  scope  of  his  au- 
thority, unless  influenced  by  malice,  cor- 
ruption, or  cruelty,  although  he  may  have 
committed  an  error  of  judgment  in  the 
exercise  of  his  discretionary  authority. 
The  officer  is  a  public  officer  and  his  posi- 
tion is  quasi  judicial."      (22) 


(21)  Neall  v.  United  States,  (1902,)  118  F.,  699. 

(22)  Wilkes  v.  Dinsman,  ?  How.,  (U.  S.)  89,  12 
L.  ed.,  618,  holding  that  the  burden  of  proof  is  on 
plaintiff  to  show  that  the  officer  exceeded  his  author- 
ity. 


264 


CHAPTER  TWENTY-ONE. 


^.TABILITY    OF    ENLISTED     MEN    UNDER 

CIVIL  LAW. 


257.  When  Liability  Begins.  As  has  been 
heretofore  shown,  (1)  eiiHsted  men  cannot  be 
turned  over  to  the  civil  authorities  for  trial,  during 
their  tour  of  duty,  except  in  certain  cases.  But 
this  does  not  interfere  with  the  service  of  summons 
upon  them  in  a  suit  for  damages.  A  damage  suit, 
however,  is  rarely  brought  against  an  enlisted  man. 
He  has  built  his  nest  upon  the  ground  where  the 
*itorm  flies  over  him.  In  other  words,  the  respon- 
sibility for  his  actions,  under  orders,  is  borne  by 
his  officers.  And,  except  where  the  enlisted  man 
is  turned  over  to  the  civil  authorities  under  the  59th 
Article  of  War,  he  is  not,  under  martial  law,  likely 
to  fall  into  the  hands  of  the  civil  authorities  until 
the  restoration  of  order  and  determination  of  mar- 
tial law  powers.  Moreover,  under  absolute  martial 
law,  the  59th  Article  of  \\'ar  could  not  apply. 

258.  General  Rule.  A  soldier  may  justify 
under  an  order  of  his  superior  which  does  not  ex- 
pressly and  clearly  show  its  illegality  on  its  face. 


(1)     See  Sees,  90,  91  and  92. 

265 


LIABILITY    OF    MEN. 

(2)  But  a  soldier  is  bound  to  obey  only  the  lawful 
orders  of  his  superior  officers.  An  illegal  order 
from  a  superior  will  not,  of  itself,  always  justify  a 
wilful  killing  of  another.  (3)  The  question  of 
legal  status  again  arises.  Orders  given  under  mar- 
tial law  may  be  justifiable,  when  the  same  orders  in 
time  of  peace  would  be  manifestly  illegal.  A  naval 
officer  in  command  of  a  ship  has  no  authority  to 
direct  a  sentry  on  duty  aboard  the  vessel  to  run 
through  the  body  any  man  who  shall  abuse  the  sen- 
try by  words  alone,  however  opprobrious,  and  if 
any  such  order  should  be  given  it  would  be  unlaw- 
ful and  could  not  justify  or  excuse  a  homicide  com- 
mitted by  the  sentry  under  such  circumstances.      (4) 

These  qualifications  to  the  rule  first  stated  only 
mean  that  the  enlisted  man  must  bear  in  mind  that 
the  situation,  in  time  of  peace,  does  not  permit  the 
use  of  the  same  force  that  would  be  applied  in  time 
of  war.  Bearing  the  existing  conditions  in  mind 
he  will  obey  orders  as  first  stated.  He  should  obey 
orders  unless  he  is  sure  they  are  unlawful. 

259.  Sentries.  General  Rule  Under  Mil- 
itary  Law.     The   enlisted   man,    as   a    sentry,    is 


(2)  Riggs  v.  State,  3  Colw.  (Tenn.)  85,  91  Am. 
Dec,  272 ;  Com.  v.  Shortall,  206  Pa.  St.,  165. 

(3)  U.   S.  V.   Carr,   25   P>d.   Cas.   No.   14,732;   1 
Woods,  480. 

(4)  U.  S.  V.  Bevans,  24  Fed.  Cas.  No.  1-4,589. 

266 


LIABILITY    OF    MEN. 

compelled  to  assume  the  offensive  against  both  sol- 
diers and  civilians.  As  has  been  heretofore  stated, 
his  duties  against  soldiers  are  controlled  by  military 
law;  against  civilians,  by  martial  law  in  time  of  in- 
surrection and  by  military  and  civil  law  in  time  of 
peace.  \\'ith  reference  to  the  liability  of  a  sergeant 
of  the  guard  for  shooting  another  soldier,  Judge 
Woods,  afterwards  of  the  supreme  court  of  the 
United  States,  once  charged  a  jury  as  follows: 

''Place  yourselves  in  the  position  of  the 
prisoner  at  the  time  of  the  homicide.  In- 
quire whether,  at  the  moment  he  fired  his 
piece  at  the  deceased,  with  his  surround- 
ings at  the  time,  he  had  reasonable  ground 
to  believe,  and  did  believe,  that  the  killing 
or  serious  wounding  of  the  deceased  was 
necessary  to  the  suppression  of  a  mutiny 
then  and  there  existing,  or  of  a  disorder 
which  threatened  to  ripen  into  mutiny.  If 
he  had  reasonable  ground  so  to  believe, 
then  the  killing  was  not  unlawful.  But,  if 
on  the  other  hand,  the  mutinous  conduct 
of  the  soldiers,  if  there  was  any  such,  had 
ceased,  and  it  so  appeared  to  the  prisoner, 
or  if  he  could  reasonably  have  suppressed 
the  disorder  without  the  resort  to  such 
violent  means  as  the  taking  of  the  life  of 
the  deceased,  and  it  would  so  have  ap- 

267 


LIABILITY    OF    MEN. 

peared  to  a  reasonable  man  under  like 
circumstances,  then  the  killing  was  unlaw- 
ful. But  it  must  be  understood  that  the 
law  will  not  require  an  officer  charged 
with  the  order  and  discipline  of  a  camp  or 
fort  to  weigh  with  scrupulous  nicety  the 
amount  of  force  necessary  to  suppress  dis- 
order. The  exercise  of  a  reasonable  dis- 
cretion is  all  that  is  required."      (5) 

260.  Sentries,  General  Rule  in  Aid  of  Civil 
Authorities.  The  liability  of  sentries,  when  their 
commanding  officer  is  acting  strictly  in  aid  of  civil 
authorities,  depends  upon  three  things :  First,  the 
powers  of  the  civil  officer  in  commaiid.  Second,  the 
special  orders  of  the  sentry.  Third,  the  right  of 
self-defense.      (6) 

Tf  a  statute  of  the  state,  in  which  service  is  being 
rendered,  constitutionally  invests  the  commanding 
civil  officer  with  special  riot  powers ;  these  powers 
may  be  executed,  under  special  orders,  by  the  sen- 
try. (7)  But  the  enlisted  man  need  not  be  a  con- 
stitutional lawyer.  On  receipt  of  his  orders  he 
should  think  of  what  he  has  to  do  to  carry  them  out. 
If  he  concludes  the  orders  are  proper,  under  the 


(5)  U.  S.  v.  Carr,  1st  Woods,  480. 

(C))  On  the  first  and  third  propositions,  see  chap- 
ter. 9. 

(7)  See  Sec.  116. 

268 


LIABILITY    OF    MEN. 

circumstances,  that  conclusion  justifies  him  in  obey- 
ing the  orders.  It  would,  however,  be  well  for  the 
sentry  to  keep  in  mind  the  general  distinction  be- 
tween felony  and  misdemeanor  and  not  shoot  a 
man,  except  in  self-defense,  where  a  misdemeanor 
only  may  be  attempted.  He  should  not  use  phys- 
ical force  against  vocal  violence ;  but  as  verbal  abuse 
usually  leads  to  overt  acts,  it  would  be  the  duty  of 
the  officer  of  the  guard,  under  these  circumstances, 
to  use  a  patrol  in  clearing  the  vicinity  of  the  post. 
This  matter  should  be  covered  by  the  general  direc- 
tions of  the  civil  officer. 

2G1.  Sentries,  General  Rule  Under  Mar- 
tial La\v.  Special  orders  to  sentries  usually  em- 
body a  rule  as  to  when  sentries  shall  fire.  These 
orders,  unless  manifestly  unlawful,  may  be  safely 
carried  out  by  the  sentries.  If  they  apply  to 
strangers  approaching  a  post,  the  warning,  "Halt ! 
or  I  fire!"  should  be  used  and  repeated,  except  in 
cases  of  attempted  surprise.  With  reference  to  these 
orders  the  Supreme  Court  of  Pennsylvania,  quoting 
from  Hare's  Constitutional  Law,  said : 

"It  is  not  less  clear  that  although  the 
justification  must  be  based  on  necessity, 
and  cannot  stand  on  any  other  ground,  it 
will  be  enough  if  the  circumstances  in- 
duce and  justify  the  belief  that  an  immi- 
nent peril  exists,  and  cannot  be  averted 

269 


LIABILITY    OF    MEN, 

without  transcending  the  usual  rules  of 
conduct.  For  when  the  exigency  does  not 
admit  of  delay,  and  there  is  a  reasonable 
and  probable  cause  for  believing  that  a 
particular  method  is  the  only  one  that  can 
avert  the  danger,  it  will  be  morally  neces- 
sary, even  if  the  event  shows  that  a  dif- 
ferent and  less  extreme  course  might 
have  been  pursued  with  safety."     (8) 

And  the   Supreme   Court   of   the  United   States 
has  also  held  that : 

"It  is  the  emergency  that  gives  the 
right,  and  the  emergency  must  be  shown 
before  the  taking  can  be  justified.  In  de- 
ciding upon  this  necessity,  the  state  of  the 
facts  as  they  appear  to  the  officer  at  the 
time  he  acted  will  govern  the  decision,  for 
he  must  necessarily  act  upon  the  informa- 
tion of  others  as  well  as  his  own  observa- 
tion. And  if,  with  such  information  as 
he  had  a  right  to  rely  upon,  there  is  reas- 
onable ground  for  believing  that  the  peril 
is  immediate  and  menacing  or  the  neces- 
sity urgent,  he  is  justified  in  acting  upon 
it  and  the  discovery  afterwards  that  it  was 


(8)     Commonwealth  v.  Shortall,  206  Pa.  St.,  165. 

270 


LIABILITY   OF    MEN. 

false  or  erroneous  will  not  make  him  a 

trespasser."  (9) 
262.  Habeas  Corpus.  In  a  case  heretofore 
repeatedly  cited,  an  enlisted  man  killed  a  stranger, 
as  related  in  section  one  hundred  and  sixty-two. 
His  superior  officers  were  exercising  qualified  mar- 
tial law  powers  under  the  governor's  order  set  out 
at  section  two  hundred  and  eleven.  On  affidavit 
filed  with  a  justice  of  the  peace,  this  enlisted  man, 
Wadsworth,  was  arrested  after  the  return  of  his 
regiment  from  service.  The  charge  was  man- 
slaughter. Wadsworth's  officers  petitioned  the 
Supreme  Court  for  a  writ  of  habeas  corpus,  which 
was  issued,  and  the  court's  final  order  in  the  habeas 
corpus  proceeding  was  as  follows  : 

"This  court,  either  sitting  as  a  commit- 
ting magistrate  or  by  virtue  of  its  super- 
visory jurisdiction  over  the  proceedings  of 
all  subordinate  tribunals,  has  the  authority 
and  the  duty  on  habeas  corpus,  in  favor 
of  a  prisoner  held  on  a  criminal  charge, 
to  see  that  at  least  a  prima  facie  case  of 
guilt  is  supported  by  the  evidence  against 
him.  In  the  relator's  case  the  facts  pre- 
sented by  the  evidence  are  undisputed  and 
on  them  the  law  is  clear  and  settled.     If 


(9)     Taney,  C.  J.,  Mitchell  v.  Harmony,  13  How.. 
115. 

271 


LIABILITY    OF    MEN. 

the  case  was  before  a  jury,  we  should  be 
bound  to  direct  a  verdict  of  not  guilty  and 
to  set  aside  a  contrary  verdict  if  rendered. 
It  is  therefore  our  duty  now  to  say  that 
there  is  no  legal  ground  for  subjecting 
him  to  trial  and  he  is  accordingly  dis- 
charged." 

"The    relator,    Arthur    Wadsworth,    is 
discharged  from  further  custody  under  the 
warrant  held  by  respondent."     (10) 
263.     Twice   in   Jeopardy.      Where   a   United 
States  soldier  killed  a  fellow  soldier  during  a  mili- 
tary encampment,  and  on  being  surrendered  to  the 
civil  authorities  of  the  state  was  prosecuted  for  mur- 
der, and  acquitted,   such  acquittal,   though  a  final 
determination  of  his  innocence  of  murder  and  of 
each  lesser  offense  necessarily  included  therein,  was 
no  bar  to  his  subsequent  military  arrest  and  trial 
by  a  general  court-martial  for  conduct  to  the  preju- 
dice of  good  order  and  military  discipline,  though 
based  on  the  same  act.     (11) 


(10)  Com.  v.  Shortall,  206  Pa.  St.,  165. 

(11)  In  re  Stubbs,  133  Fed.,  1012.  Citing  Cross 
V.  North  Carolina,  132  U.  S.,  139;  Steiner's  Case  6 
Op.  Atty.  Gen'l.,  413 ;  Howe's  Case,  Id.,  506. 


272 


CHAPTER  TWENTY-TWO. 


MILITIA    IN    UNITED    STATES    SERVICE. 


264.  Laws  and  Regulations  Governing  the 
federal  service  of  militia  have  been  indicated, 
throughout  many  of  the  preceding  chapters,  in  con- 
nection with  their  various  duties.  (1)  The  Dick 
Act  (2)  specifically  provides  for  the  hasty  mobiliza- 
tion and  expeditious  use  of  state  troops  in  federal 
service.  But  before  beginning  these  duties  they 
become,  for  the  time  being,  federal  troops,  by  being 
mustered  into,  or  receiving  orders  for,  the  federal 
service.      (3) 


(1)  See,  for  military  law,  Sees.  1,  2,  3,  4,  10,  11, 
12 ;  for  federal  aid,  Sees.  41,  42,  43,  53,  138,  141,  201 ; 
for  federal  service,  Sees.  88,  89,  139,  169,  170,  178, 
179,  217,  225,  227,  228;  for  liabilities.  Sees.  241,  245, 
246,  247,  249.     See  all  titles  of  general  application. 

(2)  Act  of  January  21st,  1903,  32nd  Stat.  L.,  775. 

(3)  Sec.  7,  Id.  It  has  been  held  that  a  formal 
muster-in  of  an  organization  is  not  essential.  Dig. 
Opin.  J.  A.  G.,  1901,  par.  1726.  The  calling  forth  of 
the  militia  into  the  U.  S.  service  is  an  administrative 
function,  a  ministerial  act,  in  which  the  secretary  of 
war  may  issue  the  necessary  orders  as  the  organ  of 
the  executive;  and  his  act  is  the  act  of  the  president. 
Id.,  par  1725. 

273 


U.    S.    SERVICE. 

265.  Statutory  Authority  For.  Section  four 
of  the  Dick  Act  authorizes  the  president  to  use  the 
organized  mihtia  in  federal  service,  for  periods  not 
exceeding  nine  months  each,  whenever  he  is  unable, 
with  the  other  forces  at  his  command,  to  repel  in- 
vasion, subdue  rebellion,  or  execute  the  laws  of  the 
union  in  any  part  thereof.     (4) 

266.  How  Selected.  The  president,  deciding 
to  use  militia,  may  authorize  the  governor  of  a 
state  to  designate  which  troops  shall  so  serve.  The 
governor's  act  under  this  authority  becomes  the  act 
of  the  president ;  and  troops  so  selected  by  the  gov- 
ernor are  legally  selected  by  the  president.     (5) 

When  the  president  desires  to  use  the  militia  in 
federal  service  he  may  exercise  full  discretion  as  to 
what  troops  shall  be  chosen.  The  statute  recites 
that  he  may  apportion  them  among  the  states  and 
territories  or  to  the  District  of  Columbia,  according 
to  representative  population.  (6)  Were  condi- 
tions equal  this  method  might  be  adopted.  But  if, 
for  any  reason,  the  president  decides  to  use  the 
troops  from  one  or  more  states  to  the  exclusion  of 
others,  his  authority  to  do  so  is  unquestioned.  There 
are  many  reasons  why  this  should  be  so,  but  the 


(4)  Sec.  4,  Act  of  January  21,  1903,  (32  Stat.  L. 
776.) 

(5)  Dig.  Opin.  J.  A.  G.,  1901,  1727. 

(6)  Sec.  6,  Act  of  January  21,  1903,  32  Stat.  L. 

776. 

274 


U.    S.    SERVICE. 

most  important  one  is,  probably,  that  troops  in  the 
disaffected  district  have  been,  or  are,  in  service  un- 
der orders  of  the  governor.  It  may,  on  rare  occa- 
sions, happen  that  troops  in  the  disaffected  district 
are  tainted  by  the  same  lawless  spirit  which  has 
caused  the  disturbance  or,  for  other  reasons,  can- 
not act  with  the  same  whole-hearted  interest  in 
the  national  welfare  that  will  be  displayed  by  troops 
from  other  states.  Furthermore,  it  will  often  hap- 
pen, that  the  equipment  of  some  state  troops,  owing 
to  the  indifference  of  the  state  legislature,  will  not 
be  in  such  condition  as  to  make  a  sudden  call  expe- 
dient. This  last  reason  should  result  in  a  common 
feeling  of  shame  throughout  the  state  where  it  ex- 
isted, if  it  prohibits  the  state  troops  from  assisting 
the  national  government  in  maintaining  the  integ- 
rity of  the  nation.  But  a  discussion  of  the  questions 
which  arise  because  of  this  condition  is  inoppor- 
tune. It  may  be  said,  however,  that  this  indiffer- 
ence to  responsibility  shows  that  General  George 
Washington,  our  first  president,  put  too  much  faith 
in  the  general  patriotism  of  his  countrymen  when 
he  said:     (7) 

"There  can  be  little  doubt  that  Congress 
will  recommend  a  proper  peace  establish- 
ment for  the  United  States,  in  which  due 
attention  will  be  paid  to  the  importance 


(7)     Arms  and  the   Man,   issue   of   February   21, 
1907. 

275 


U.    S.    SERVICE. 

of  placing  the  militia  of  the  Union  upon  a 
regular  and  respectable  footing.  *  *  * 
The  militia  of  the  country  must  be  con- 
sidered as  the  palladium  of  our  security, 
and  the  first  effectual  resort  in  case  of  hos- 
tility. It  is  essential,  therefore,  that  the 
same  system  should  pervade  the  whole, 
that  the  formation  and  discipline  of  the 
militia  of  the  continent  should  be  abso- 
lutely uniform." 

The  remedy  for  these  inequities  is  for  Congress 
lo  take  full  control  of  the  organized  militia,  under 
the  federal  constitution,  and  thus,  indirectly,  require 
each  state  to  do  justice  to  its  own  force. 

2C7.  Pay  and  Pensions  in  Federal  Service. 
The  pay  of  officers  and  enhsted  men,  of  the  militia 
in  federal  service,  is  the  same  as  that  of  the  regular 
army  in  corresponding  grades.  The  allowances  are 
also  the  same.     (8) 

In  state  service  a  militiaman,  when  injured  or 
wounded,  may  rely  only  upon  the  justice  of  the  suc- 
ceeding legislature  for  compensation.  There  may 
be  an  exception  in  a  case  where  he  can  pick  out 
certain  responsible  members  of  a  mob  and  sue  them 
for  damages  under  the  civil  laws.     This  is  rarely 


(8)     Sec.  10,  Act  of  January  21,  1903,  32  Stat.  L., 
776. 

276 


U.    S.    SERVICE. 

:?ttempted  for  obvious  reasons.  He  cannot  sue  the 
state.  The  most  that  he  may  do  is  to  petition  a  leg- 
islature which  may  or  may  not  have  been  friendly 
to  the  cause  in  which  he  suffered.  The  personal 
representatives  of  a  guardsman  who  has  been  killed 
in  such  service  have  only  the  same  rights,  or  lesser 
ones.  But  in  federal  service  the  militiaman  obtains 
the  benefit  of  those  beneficient  laws  which  Congress 
has  provided  in  compensation  to  the  men  who  have 
suffered  for  the  benefit  of  the  nation.     (9) 

268.  Company  Minimum  Accepted.  The  stat- 
ute provides  that  the  president  may  fix  the  mini- 
mum number  of  enlisted  men  in  each  company  of 
the  organized  militia  in  time  of  peace.  This  has 
been  construed  to  mean  that  the  president  may  re- 
fuse to  accept  any  company,  or  other  specified  unit, 
for  federal  service,  which  has  a  numerical  strength 
below  a  minimum  fixed  by  him.     (10) 

2G9.  Officers.  Organizations  of  the  national 
guard  shall  correspond  to  those  of  the  regular  army 
by  January  21st,  1908.  (11)  This  provision  prob- 
ably means,  in  part,  that  the  guard  would  be 
accepted  by  regiments  from  the  various  states,  fol- 


(9)  Sec.  22,  lb. 

(10)  Sec.  3,  Act  of  January  21,  1903,  32  Stat.  L., 
p.  775.  This  minimum  was  first  fixed  by  G.  O.  No. 
3,  A.  G.  O.,  1907. 

(11)  Sec.  3,  Act  of  January  21,  1903,  (32  Stat. 
L.,  775.) 


"9 IV IV' 


U.    S.    SERVICE, 

lowing  the  custom  heretofore  estabhshed.  An 
older  congressional  provision  seems  to  require  the 
president  to  accept  such  organizations  with  their 
officers  from  the  colonel  to  second  lieutenant  inclu- 
sive. (12)  Questions  arise  as  to  whether  or  not 
the  president,  in  the  event  of  a  general  call,  would 
accept  the  state  organizations  greater  than  regi- 
menal. There  is  probably  no  legal  requirement 
directing  the  president  to  accept  such  organizations 
other  than  that  he  must  accept  the  regiments  and 
separate  battalions  composing  them. 

It  therefore  follows  that  when  militia  are  mus- 
tered into  federal  service  they  are  accepted  as  fully 
organized  and  officered  regiments  or  smaller 
units.     (13) 

270.  State  Property.  Regiments  mustered 
into  the  service  of  the  United  States  will  always  be 
required  to  take  property  for  which  certain  of  their 
officers  are  responsible  to  their  respective  states. 
Other  property  will  be  issued  to  them,  for  which 
they  are  responsible  to  the  federal  government.  It 
is  manifest  that  the  returns  for  these  two  classes  of 
property  must  be  kept  separate  unless  orders  are 


(12)  Sec.  3.  Act  of  April  2Gth.  1898. 

(13)  Officers  of  the  national  guard  cannot  be 
commissioned  by  the  president  without  a  violation  of 
the  federal  constitution,  which:  "reserves  the  ap- 
pointment of  the  officers  to  the  states  respectively." 
Dig.  Opin.  J.  A.  G.,  1901,  par.  1734. 

278 


U.    S.    SERVICE. 

Otherwise  issued.  Much  of  this  so-called  state 
property  really  belongs  to  the  federal  government. 
It  is  charged  to  the  state,  and  by  the  state  to  the 
officer.  A  plan  may  be  devised  whereby  the  federal 
government  will  take  the  state  property  on  such 
occasions.  Such  a  plan  would  save  subsequent  con- 
fusion and  enable  the  officers,  responsible  for  public 
property,  to  dispense  with  one  set  of  returns.  Al 
the  inception  of  the  Spanish  War  much  public 
property  theretofore  charged  to  the  states  was  lost 
because  the  state  militia  officers,  mustered  in  as  vol- 
unteers, did  not  thereafter  consider  themselves  re- 
sponsible to  the  states  and  did  not,  in  the  hurried 
concentration  camps,  find  time  to  collect  and  care 
for  the  state  property.  They  were  too  busy  learning 
their  new  duties. 

271.  Horses.  Some  general  plan  will  probably 
be  adopted  whereby  mounted  officers  may  procure 
horses  from  the  U.  S.  quartermaster's  department 
whenever  militia  is  mustered  into  the  federal  serv- 
ice. This  is  advisable  because  the  horses  should  con- 
form to  federal  specifications  in  order  to  be  service- 
able. It  will,  moreover,  avoid  the  necessity  for  the 
transportation  of  horses  with  each  regiment  which 
has  been  ordered  to  the  general  rendezvous.  Unless 
a  general  order,  under  som.e  such  plan,  has  been 
issued,  some  infantry  field  and  staff  officers  will  be 
on    foot,    some   on    mares    and    some   on    geldings 

379 


U.    S.    SERVICE. 

equally  objectionable.  This  lack  of  uniformity  will 
be  due  to  hasty  mobilization  and  to  the  doubt  as  to 
whether  or  not  horses  will  be  needed.  In  riot  duty 
in  cities,  on  state  service,  it  is  not  the  custom  to 
take  horses  except  for  cavalry. 


S80 


CHAPTER  TWENTY-THREE. 


REPORT  OF  TOUR  OF  DUTY. 


272.  Reports  Are  Historical  Details.  It  is 
manifest  that  the  details  of  past  occurrences  are 
easily  forgotten  and  confused.  It  is  therefore  of 
importance  that  a  record  should  be  kept,  somewhere, 
of  each  event  which  may  afterwards  be  needed  as 
testimony,  as  history,  as  a  precedent,  or  as  a  corrob- 
orative basis  for  other  testimony.  For  these  reasons 
a  record  of  the  events  and  transactions  of  each  tour 
of  riot  duty  is  required  of  and  made  by  the  com- 
manding officer.  This  record  is  filed  in  the  form  of 
a  report  and  is  often  of  great  importance  with  rela- 
tion to  the  aftermath  of  riot  duty. 

273.  General  Requirements.  These  reports 
usually  begin  with  a  copy  of,  or  reference  to,  the 
orders  under  which  the  troops  were  called  into  serv- 
ice. They  then  state  concisely  the  following  de- 
tails : 

1st.  A  description  of  the  units  composing  the 
force,  where  such  description  is  not  included  in 
the  orders. 

2nd.  The  times  of  the  movements  of  the  various 
units,  such  as  companies  traveling  separately.  Or- 
ders to  these  units  may  be  set  out  or  attached. 

281 


REPORT    OF    TOUR    OF    DUTY. 

3rd.  A  statement  of  the  information  acquired, 
as  to  the  progress  of  the  trouble,  up  to  the  time  of 
the  arrival  of  troops. 

4th.     Orders  from  civil  authorities,  if  any. 

5th.  Details  of  first  disposition  of  troops  with 
orders  issued  therefor. 

Gth.     Proclamations  issued,  if  any. 

7th.     Conduct  of  the  mob,  first  day. 

8th.  Subsequent  orders,  if  any,  from  civil 
authorities,  first  day. 

9th.     Orders  to  stafT  officers. 

10th.     Details  of  the  action  of  troops,  first  day. 

The  insertion  of  proper  dates  serves,  afterward, 
in  fixing-  dates  as  to  other  matters.  The  report  is 
continued  by  recording  important  events  and  orders ; 
but  the  first  day's  record  is  usually  fuller  than  the 
succeeding  ones  when  troops  are  coping  with  the 
ordinary  riot.  The  commanding  officer  may  direct 
someone  to  keep  this  record  of  events.  He  may  dic- 
tate it  each  evening  to  a  stenographer,  detailed  as 
clerk.  The  importance  of  keeping  a  record  up  to 
date  is  realized  when  an  officer  on  return  home  is 
required  to  sit  down,  exhausted  from  riot  duty,  and 
make  at  one  time  a  detailed  report  of  two  weeks' 
service. 

274.  Staff  Reports.  A  commanding  officer 
may  require  each  staff  officer  to  make  to  him  a  for- 
mal report  and  these  will  be  attached  to  the  general 
report  of  the  commanding  officer.     They  are  cor- 

282 


REPORT    OF    TOUR    OF    DUTY. 

roborative  of  the  general  report  and  include  minor 
transactions  which  need  not  be  mentioned  in  it,  but 
may  become  important. 

275.  Medical  Officer's  Report.  The  report 
of  the  chief  medical  officer  is  important  as  evidence 
in  future  claims  against  the  government.  It  should 
therefore  be  prepared  with  a  view  to  these  claims 
upon  it  and  be  accompanied  by  certificates  or  affi- 
davits as  to  important  cases.  It  should  contain 
definite  references  to  the  sick  report  books,  to  sa\-e 
subsequent  confusion. 

276.  Commissary  Officer's  Report.  In  state 
service  the  senior  commissary  officer  will  report  the 
reasons  for  not  following  the  regulations  in  the 
purchase  of  emergency  subsistence,  if  any.  His 
report  will  cover  all  unusual  transactions  which  need 
further  explanation  than  that  shown  on  his  regular 
returns. 

277.  Quartermaster's  Report.  This  report 
should  check  with  the  commanding  officer's  reports 
as  to  the  movements  of  troops,  and  cover  details  of 
movements  which  ma}^  subsequently  become  im- 
portant but  are  not  shown  in  the  general  report.  In 
other  matters  the  report  is  similar  to  the  commissary 
officer's  report,  except  that  it  treats  of  different 
property,  and  of  quarters. 

278.  Summary  Court  Officer's  Report  may 
be  on  the  usual  form.  If  this  officer  is  also  detailed 
as  provost  marshal,  his  judicial  duties  with  relation 

283 


REPORT    OF    TOUR    OF    DUTY. 

to  enlisted  men  and  civilians  will  be  reported  sepa- 
rately. 

279.  Judge  Advocate's  Report.  A  judge  ad- 
vocate will  hardly  be  detailed  except  in  service  of 
a  considerable  force  for  some  duration  of  time.  Un- 
der these  circumstances  some  degree  of  martial  law 
is  usually  exercised  and  the  same  officer  may  well 
be  a  provost  officer  and  a  judge  advocate.  His 
transactions  under  military  law  will  be  reported 
separately  from  those  under  martial  law. 

280.  Under  Martial  Law.  The  commanding- 
general's  report  usually  consists  of  a  summary  of 
the  duty,  w'ith  references  to  the  detailed  reports  of 
his  various  assistants. 

281.  Fairness  to  other  officers,  in  reports,  is 
almost  as  important  as  exactness.  A  supreme  test 
of  civilized  man  is  to  intrust  him  with  unusual 
powers  and,  at  the  conclusion  of  their  exercise,  to 
observe  whether  or  not  he  has  allowed  his  judg- 
ment to  be  perverted  by  bias  or  prejudice.  In  an 
emergency  requiring  the  hasty  performance  of  new 
duties,  officers  sometimes  betray  irritability  solely 
because  of  a  nervous  desire  to  have  everything 
right.  These  exhibitions  of  seeming  harshness  are 
more  often  due  to  physical  than  to  mental  defects. 
They  should  never  be  permitted  to  interfere  with 
that  cordiality  between  officers  which  is  so  neces- 
sary to  a  proper  esprit  de  corps. 

384 


INDEX. 


references  are  to  sections. 
Absolute  Martial  Law, 

defined,  192. 

exercise  of,  203. 

habeas  corpus  under,  226,  22?. 

principal  rules  stated,  204. 

tactical  use  of  troops  under,  186. 
Advance  Guard, 

for  street  work,  158. 

Affrays, 

defined,  107. 
Aid  of  Civil  Authorities, 

authority  of  military  officers,  94, 

civil  officers  close  saloons,   150. 

civil  officers  should  confer  full  powers,  105. 

discretionary  powers  of  military  officers,  110. 

federal  troops  act  independently,  139. 

felonies  and  misdemeanors,  98. 
•  firing  on  mob,  112. 

liability  of  officers,  242. 

liabiUty  of  sentry  in,  260. 

liability  of  soldier  to  arrest,  90,  91,  92. 

military  discretionary  powers  limited,  95. 

officer's  discretionary  powers,  183,  note. 

orders  in  general,   66. 

order  to  fire,  65. 

private  property,  229. 

state  statutes  control  tactics,  116. 

285 


INDEX,    REFERENCES    TO    SECTIONS. 

tactical  use  of  troops  in,  182,  183. 

territorial  limits,  117. 

troops  may  act  in  self  defense,  96. 

who  may  call  troops,  52,  53,  54,  55,  56. 

writ  of  habeas  corpus  not  suspended,  220. 
Ammunition, 

emergency  supply  kept  on  hand,  20. 

multiball  for  street  service,  20. 

officer  placed  in  charge  of,  20. 
Amusement  Halls, 

regulation  of,  154. 
Appeal, 

to  governor,  for  orders,  when,  57. 
Armed  Police, 

when  militia  act  as,  95. 
Army, 

constitution  distinguishes  it  from  militia,  1. 

defined,  1. 

militia  is  not,  1. 
Arrest, 

after  escape,  102. 

by  civil  authorities,  90,  91,  92. 

by  civil  officers,  for  felonies,  100. 

civil,  for  an  affray,  107. 

civil,  when  liable  to,  90,  91,  92. 

for  felony,  force  used  for,  100. 

for  misdemeanor,  by  civil  officer,  103. 

for  misdemeanor,  force  used  in  making,  104. 

homicide   when   rioter   resists,    114. 

liability  to,  when  aiding  civil  authorities,  90,  91, 
92. 

power  to,  by  civil  authorities,  98  et  seq. 

what  constitutes  presence  or  view,  109. 

286 


index,  references  to  sections. 

Arrival  of  Troops, 

civil  authorities   will  be  advised  of,   6G. 

Articles  of  War, 

apply  to  militia  in  federal  service,  9. 

as  applied  to  state  troops  in  state  service,  9. 

Artillery, 

first  disposition  of,  IGG. 
use  of  prolongs,  IGG. 

Assembly, 

of  troops  before  receipt  of  orders,  44  et  seq. 
regulations  requiring,  45. 

Attack, 

by  mob,  resisting,  111. 

Attempted  Felony, 

arrest  for,  by  civil  officers,  100. 

Baggage, 

preparation  of,  88. 
Baggage  and  Stores, 

cook  outfit  kept  packed,  22. 
Barricades, 

construction  of,  163, 

Bayonet, 

exercises,  drill  in,  23. 
used  to  disperse  mob.  159. 
use  of,  187. 

Billeting  Troops, 

prohibited,  173. 
Blank  Cartridges, 

should  not  be  used,  188. 
Breach  of  the  Peace, 

defined,  108. 

287 


index,  references  to  sections. 

Call  for  Troops, 

laws    governing,    35. 

occasions  classified,  35. 

should  be   in   writing,   56. 

when  made,  25  et  seq. 
Camp, 

followers,  8. 

Camp  Sites, 

taking  ground  for,  236. 

Canvas, 

use  of,  174. 

Cartridges, 

emergency  supply  kept  on  hand,  20. 
multiball  for  street  service,  20. 

Cavalry, 

first  disposition  of,  165. 
tactical  use  of,  165. 

Cavalry  Horses, 

drill  of,  23,  165. 
Censorship, 

of  theaters,  etc.,  154. 
Churches, 

how  protected,  204. 
Civil  Authorities, 

acting  independently  of,  133. 

actual  attendance  of,  65. 

are  all  under  direction  of  governor,  127. 

arrest  by,  when  in  aid  of,  90,  91,  92. 

arrest  of,  132. 

cannot   delegate   their    powers   to    military   com- 
mander, 183,  note. 

certain,  may  call  out  troops,  55. 

288 


INDEX,    REFERENCES    TO    SECTIONS. 

conference  with  officer,  71. 

control  troops  acting  in  their  aid,  97. 

co-operation  with,  118,  120. 

disarmed  in  emergencies,  134. 

disputes  between,  118. 

duty  of,  as  to  public  meetings,  153. 

duty  of,  as  to  saloons,  151. 

duty  to  prevent  riot,  37. 

duty  to  suppress  riot,  38. 

form  of  order  for  troops  by,  60,  61. 

functions  of,  exercised  by  military   commander, 

under  martial  law,  203. 
governor  may  overrule,  67. 
governor's  powers   over,   127. 
importance  of  prompt  decision,  40. 
may  call  for  troops,  when,  35. 
may  call  only  certain  troops,  56. 
may  decide  when  troops  should  be  called,  30. 
may  not  permit  violation  of  law,  36. 
may  tell  state  troops  what  to  do  but  not  how  to 

do  it,  183. 
may  use  military  force,  when  necessary,  37. 
orders  by,  should  be  in  writing,  59,  65. 
permitting  violation  of  statutes,  212. 
playing  pohtics,  74. 

powers  of  in  making  arrests,  98  et  seq. 
prevention  of  crime  by,  106. 
reinstating,   134. 

report  progress  of  disturbance,  66. 
required  to  enforce  laws,  36. 
rivals,   governor   decides,   126. 
should  confer  full  powers,  105. 
should  inform  governor  of  disturbances,  54. 

289 


INDEX,    REFERENCES    TO    SECTIONS. 

should  keep  governor  advised,  64. 

should  meet  troops,  81. 

sympathy  with  insurrection,  39. 
Civil  Courts, 

under  martial  law,  206. 
Civilians, 

accompanying  troops,  8. 

certain,  given  permits  at  night,  156,  157. 

conduct  toward,  76. 

justifiable  homicide  by,  113. 

with  troops,  control  of,  in  time  of  war,  8. 
Civil  Law, 

definition  of,  as  used  in  text,  195. 
Civil  Officers, 

conduct  of  military  toward,  74. 
Citizens, 

separating  from  mob,  123. 
Closing  Saloons, 

statutes  relating  to,  149. 
Commander, 

dual  powers  of,  6. 

scope  of  powers,  7. 
Commanding  Officer, 

action  of,  under  conflicting  orders,  118. 

conflicting  orders  to,  57,  58. 

control  of,  by  civil  authorities,  97. 

co-operates  under  qualified  martial  law,  122. 

co-operating  with  civil  authorities,  120. 

discretionary  powers  of,  aid  of  civil  authorities, 
110. 

duty  as  to  saloons,  149,  150,  151,  152, 

federal,  discretionary  powers,  246. 

first  orders  of,  63. 

290 


INDEX,    REFERENCES    TO    SECTIONS. 

governor  may  delegate  military  powers  to,  139. 

has  limited  powers  in  aid  of  civil  authorities,  95. 

his  powers  in  aid  of  civil  authorities,  94. 

jurisdictional  limits  in  state  service,  117. 

keeps  open  communication  with  governor,  64. 

may  act  in  self  defense,  96. 

may  construct  barricades,  163. 

obtaining  powers  from  civil  authority,  105. 

orders  of,  as  to  safeguard,  162. 

pays  for  property  destroyed  by  his  men,  83. 

personal  conduct  of,  79. 

plans  with  reference  to  source  of  orders,  168. 

reports  where,  to  civil  officer,  81. 

required  to  resort  to  qualified  martial  law,  119. 

responsibilities  of,  124. 

separates  citizens  from  mob,  123. 

should  acknowledge  receipt  of  orders,  62. 

should  be  attended  by  civil  officer,  65. 

should  detrain  at  distance  from  mob,  82. 

should  require  written  orders,  59,  60. 

use  of  machine  guns  by,  164. 

warns  before  firing,  204. 
Commissaries, 

duties  in  federal  service,  169,  170. 

U.  S.  manual  for,  89. 
Commissary's  Report, 

tour  of  duty,  276. 
Company  Commanders, 

discretion  as  to  assembhng  troops,  46. 
form  of  his  notice  to  men,  17. 
must  guard  armory,  47. 
notifying  men  for  riot  duty,  16. 
orders  of,  63. 

291 


index,  references  to  sections. 

Compensation, 

for  private  property  taken  or  injured,  238. 
Concurrent, 

martial  and  civil  law,  134. 
Conduct  of  Men, 

preparing  for  riot  duty,  50. 
Conduct  of  Officers, 

exercising  qualified  martial  law,  78. 

in  preparation,  71, 

in  preparation  for  riot  duty,  49. 

personal,  79. 
'  onduct  Toward  Citizens, 

of  soldiers,  76. 
Conduct  Toward  Mob, 

of  officers,  77. 
Conduct  Toward  Troops, 

of  officers,  75. 
Conflicting  Orders, 

governor  should  adjust,  67. 

governor  supreme,  67. 
Conflict  of  Orders, 

appeal  to  governor,  57,  58. 

two  governors  for  one  state,  58. 
Congress, 

may  prescribe  discipline  for  militia,  9. 
Constitution, 

guarantee  of  the  federal,  41. 

U.  S.,  distinguishes  army  from  militia,  1. 
Constitutional  Provisions, 

federal,  as  to  habeas  corpus,  217. 

govern  call  of  troops,  25. 
Constitutions, 

are  the  highest  laws  of  the  states,  28. 

292 


INDEX,    REFERENCES    TO    SECTIONS. 

give  governor  power  to  decide  emergencies,  28. 

make  governor  chief  executive,  29. 

powers  of  civil  authorities  under,  37. 

state,  govern  calls  for  troops,  52. 

state,  provide  when  troops  are  called,  25. 

used  to  determine  legal  questions,  72. 
Contempt  of  Court, 

by  militia  officer,  242. 
Contractors, 

civilian,  with  troops,  8. 
Co-operative  Martial  Law, 

defined,  119,  193. 

exercise  of,  209. 

habeas  corpus  under,  222,  225. 

may  be  resorted  to,  119. 

tactical  use  of  troops  under,  185. 
Correspondents, 

with  troops,  8. 
Cossack  Post, 

at  armory,  47. 

for  safeguards  and  outposts,  189. 
Court  of  Claims, 

functions  of,  238. 
Courts  of  Justice, 

military  commissions  are,  178. 
Crime, 

prevention  of,  106. 
Crops, 

destruction  of,  235. 
Curfew, 

regulations,  156. 
Custodian, 

of  military  district  property,  233. 

293 


index,  references  to  sections. 

Customs  of  the  Service, 

defined,  12. 

legal  force  of,  12. 
Deployment, 

before  encountering  mob,  159. 
Destruction  of  Crops, 

to  prevent,  etc.,  235. 

Destruction  of  Property, 

fixing  responsibility  for,  161. 

liability  for,  73. 

preventing,  161. 

prohibited,  except  under  military  necessity,  204. 
Detraining, 

at  distance  from  mob,  82. 

Dick  Act, 

act  of  January  21,  1903,  9. 

gave  state  forces  constitutional  rights,  9. 

Disciplinary, 

punishments  defined,  5. 

Discipline, 
defined,  5. 
enroute,  83. 
prescribed  by  congress,  9. 

Disloyal  Citizens, 

classified,  197. 
Domestic  Disturbances, 

suppression  of  by  president,  42. 
Dorr  Rebellion, 

rival  governors,  126. 
Drills, 

for  cavalry  horses,  23. 

preparatory,  23. 

294 


index,  references  to  sections. 

Dual  Powers, 

of  commander,  6. 
Emergency  Board, 

state,  for  expenses  of  riot  duty,  177. 

Eminent  Domain, 

taking  property   under   military   necessity    is   not 
exercise  of  right,  238. 

Encampments, 

taking  ground  for,  236. 

Encounter, 

with  mob,  159. 

Enlisted  Men, 
as  scouts,  80. 
care  of,  75. 

conduct  of,  in  preparation  for  duty,  5Q 
discipHnary  punishment  of,  83. 
HabiUty  under  civil  law,  257  et  seq. 
may  be  taken    from    civil    authority   on  habeas 

corpus,  262. 
property  of,  lost,  239. 
subsistence,  awaiting  call,  51. 
suing  officer  in  civil  courts,  256. 
when  liability  to  civil  law  begins,  257. 

Equeries, 

for  mounted  officers,  176. 

Equipment, 

posting  order  as  to,  21. 

preparation  of,  21. 
Escape, 

arrest  after,  102. 
Fairness, 

to  officers,  in  reports,  281. 

295 


index,  references  to  sections. 

Family  Rights, 

always  protected,  204. 
Federal  Aid, 

application  for,  43. 

federal  statutes  control  tactical  regulations,  179. 

form  of  order  to  troops,  139,  note. 

statutes  relative  to,  42. 

use  of  federal  militia,  41. 
Federal  Service, 

state  court  writ  of  habeas  corpus  suspended,  228. 
Federal  Troops, 

control  of,  139. 

custom  as  to  co-operation,  139. 

do  not  act  under  orders  of  civil  authorities,  139. 

militia  are,  in  federal  service,  178. 
Felonies, 

arrest  for,  by  civil  officers,  100. 

defined,  98. 

force  used  to  arrest  for,  101. 

Field  Desk, 

kept  ready  for  service,  22. 
Firing  on  Civilians, 

who  force  dead  line,  1G2. 
Firing  on  Mob, 

in  aid  of  civil  authorities,  112. 
Firing  on  Rioters, 

by  advance  and  rear  guards,  158. 
First  Disposition  of  Troops, 

general  plan,  168. 
Footnotes, 

authority  of,   69. 

296 


index,  references  to  sections. 

Forfeiture  of  Estate, 

warning  as  to,  147. 
Form  of  Notice, 

to  assemble  for  riot  duty,  17, 

Form  of  Orders, 

for  troops,  60,  61. 

Form  of  Proclamation, 

by  governor,  establishing  martial  law,  I-IS. 

by   governor,   establishing   qualified   martial    law, 
211. 

by  military  district  commander,  1-1-4. 

by  president,  in  domestic  disturbance,  141. 
Form  of  Return, 

on  writ  of  habeas  corpus,  223. 

Frauds  in  Service, 

liability  of  officers  for,  255. 

Governor, 

acting  independently  of  civil  authorities,  122. 

acts  when  minor  authorities  fail,  39. 

cannot  be  subpoenaed,  240. 

cannot   delegate   his   powers   to   civil   authorities, 

127. 
civil  authorities  may  ask  him  to  call  troops,  57. 
communication  with,  64. 
controls  other  state  civil  authorities,  55. 
decides  disputes  between  civil  officers,  118. 
decides  when  troops  shall  be  called,  127. 
duties  of,  in  paying  state  troops,  177. 
establishing  military  commissions,  136. 
form  of  his  order  for  troops,  60,  211. 
governed  by  state  constitution,  25. 
has   full  powers  in  insurrection,   128. 

297 


INDEX,    REFERENCES    TO    SECTIONS. 

has  highest  executive  powers,  29. 
his  official  duties  not  controlled  by  courts,  240. 
his  orders  protect  officer,  240. 
.importance  of  prompt  decision,  40. 
in  suppressing  insurrection,  is  accountable  to  no 
one,  128. 

may  act  summarily,  128.  / 

may  apply  for  federal  aid,  41,  42. 

may  arrest  civil  officer,  when,  132. 

may  compel  civil  authorities  to  enforce  laws,  30. 

may  delegate  martial  law  powers  to  military  com- 
mander,  129. 

may  disarm   civil  officers,   134. 

may  order  out  troops,  when,  35. 

of  territory,  exercising  martial  law,  202. 

order  of,  establishing  qualified  martial  law,  211. 

order  of,  for  emergency  subsistence,  171. 

powers  in  insurrection,  127. 

power  to  call  out  troops,  52,  53. 

preventing  prize  fight,  36. 

proclamation  by,  in  insurrection,  142. 

recitals  in  his  proclamation  cannot  be  disputed  by 
courts,  143. 

resorting  to  qualified  martial  law,  119. 

should  issue  written  orders,  59,  60. 

should  not  call  troops  under  unconstitutional 
laws,  27. 

state  secrets,  240. 

statutes  cannot  strip  him  of  constitutional  powers, 
127. 

terminates  martial  rule  by  proclamation,  148. 

using  troops,  removes  constitutional  limitation, 
127. 

298 


INDEX,    REFERENCES    TO    SECTIONS. 

who  is,  decided  by  president,  141. 
Grand  Jury, 

cannot  secure  state  secrets  from  officer,  2-iO. 
Guards, 

for  armories,  when,  47. 
Habeas  Corpus, 

defined,  318. 

federal  constitutional  provisions,  217. 

form  of  return  on  writ,  223. 

governor's  proclamation  settles  questions  of  fact, 
143. 

illustration  of  suspension  of  writ,  224. 

proclamations  suspending  writ,  142,  144. 

reference  to  general  rules,  125. 

suspended  as  effect  of  proclamation,  224. 

suspension  of  writ  defined,  219. 

under  absolute  martial  law,  226,  227. 

under  co-operative  martial  law,  222,  225. 

under  qualified  martial  law,  221. 

used  by  officers  for  enlisted  men,  262. 

writ  not  suspended  in  aid  of  civil  authorities,  220. 
Homicide, 

in  making  arrest  for  felony,  101. 

in  riot  duty,  justified  by  state  statutes,  116, 

in  self  defense,  96. 

justifiable,  by  civilians,  113. 

when  rioters  resist  arrest,  114. 
Horses, 

drill  of,  23. 

for  militia  officers  in  U.  S.  service,  271. 

use  of  cavalry,  165. 
Hospitals, 

how  protected,  204. 

299 


index,  references  to  sections. 

Hospital  Stores, 

may  be  needed  early,  167. 
Hostile  Acts, 

in  time  of  peace,  117. 
Information, 

obtaining,  from  prisoners,  77. 

use  of  scouts  for,  80. 
In  Pari  Delicto, 

rule  applied  in  rebellion,  25-i. 
Inspection, 

of  firing  pins  of  rifles,  20. 

of  private  weapons,  50. 
Insurgents, 

commanded  to  disperse  by  president,  42. 

giving  aid  and  comfort  to,  198. 

status  of,  197. 

sympathy  with,  197. 
Insurgents  are  Enemies, 

qualification  of  the  rule,   197. 
Insurrection, 

aided  by  minor  civil  authorities,  39. 

becomes  rebellion,  when,  32. 

control  of  federal  troops,  139. 

defined,  32. 

duty  of  the  president,  42. 

establishing  military  commissions,  136. 

formerly  probably  meant  rebellion,  217. 

form  of  governor's  proclamation,  142. 

form  of  president's  proclamation,  141. 

governor's  decisions  as  to,  cannot  be  questioned, 
127. 

governor's  powers  are  absolute  in,  128. 

military  district  proclamation,  144. 

300 


INDEX,    REFEREN'CES    TO    SECTIONS. 

obtaining  information  in,  77. 

requiring  exercise  of  martial  law,  196. 
Interpretation  of  Laws, 

definitions,  31. 
Interurban  Cars, 

use  of,  85. 
Judicial  Decisions, 

furnish  rules  for  conduct,  13. 
Jurisdiction, 

of  military  commissions,  136,  137. 

Judge  Advocate's  Report, 
tour  of  duty,  279. 

Killing, 

see  homicide. 
Kitchens, 

preparation  of,  22. 

Krag  Jorgensens, 

inspecting  firing  pins  of,  20. 

Law, 

see  Constitutions,  Customs  of  the  Service,  Mar- 
tial Law,  Military  Law,  Regulations. 
Laws, 

calling  troops,  must  be  constitutional,  27. 

unconstitutional,  enforcement  of,  26. 
Lease, 

of  public  property,  by  military  government,  233. 
Legal  Questions, 

decision  of,  71. 
Legal  Status, 

important  to  know,  246. 

of  troops,  more  easily  ascertained  in  federal  serv- 
ice, 178. 

301 


index,  references  to  sections. 

Legislature, 

of  state  may  apply  for  federal  aid,  41,  43. 

Liability  of  City, 

for  property  destroyed  in  riot,  73. 

Liability  of  County, 

for  property  destroyed  in  riot,  73. 
Liability  of  Enlisted  Men, 

to  both  military  and  civil  law,  263, 

to  civil  law,  begins  when,  257. 

to  civil  law,  general  rule,  258. 

Liability  of  Officers, 
English  rule,  244. 
for  frauds  in  service,  255. 
for  necessaries  for  troops,  251. 
for  property  strategically  destroyed,  252. 
for  trespass  by  subordinate,  253. 
for  unnecessary  violation  of  statute,  250. 
bow  avoided,  241. 

in  aid  of  civil  authorities,  242, 

in  mistaking  legal  status,  246. 

in  suit  by  soldier,   256. 

martial  law,  federal  service,  247,  249. 

martial  law,  state  service,  248,  249. 

may  be  under  both  military  and  civil  law,  255. 
protection  of  president's  order,  245. 
under  qualified  martial  law,  244. 
Lynching, 

preventing  a,  160. 

Machine  Guns, 

co-operation  with  should  be  taught,  23. 
disposition  of,  164. 

302 


index,  references  to  sections. 

Mails, 

obstructing,  may  constitute  an  insurrection,  when, 
196,  note. 
Marches, 

concealing  force  on,  84. 

through  city  streets,  158. 
Martial  Law, 

absolute,  application  of  civil  law,  206. 

absolute,  application  of  customs  of  war,  192. 

absolute,  defined,  192. 

absolute,  principal  rules  of,  204. 

absolute,  taxes,  204. 

absolute,  what  it  suspends,  204. 

absolute,  what  laws  are  enforced,  192. 

absolute,  written  rules  proclaimed,  192. 

administration  of,  207. 

advisability  of  proclamation,  130. 

American  contrasted  with  continental,  199. 

civil  courts  under,  206. 

closing  saloons  under,  152. 

control  of  railways,  204. 

co-operative,  defined,  193. 

co-operative,  when  exercised,  193. 

defined,  3,  191,  192,  193,  194. 

degrees  of,   191. 

different  from  military  government,  3. 

duties  of  quartermaster,  175. 

elasticity  of.  198. 

establishing  military  commissions,  136. 

establishing  qualified.  211. 

establishing  without  proclamation,  122,  130,  131. 

exercised  only  in  home  territory,  3. 

exercise  of  absolute,  203. 

303 


INDEX,    REFERENCES    TO    SECTIONS. 

exercise  of  co-operative,  209. 

exercise  of  qualified,  210. 

federal  military  officer's  powers,  246. 

form  of  military  district  proclamation,  144. 

general  penalties,  204. 

governor  has  absolute  powers,  127,  128. 

governor's  powers,  200. 

growing  out  of  aid  to  civil  officers,  119. 

is  co-operative  or  absolute  in  federal  service,  193. 

leasing  public  property  under,  233. 

liability  of  sentries  under,  2G1. 

may  utterly  overthrow  civil  law,  198. 

military  occupation  necessary  to,  204. 

necessity  for  decided  by  chief  executive,  199. 

powers  must  not  be  exercised  in  peace,  246. 

president's  powers,  201. 

proclamation  of  governor,  142. 

qualified,  119. 

qualified,  defined,  194. 

qualified  distinguished  from  co-operative,  211. 

qualified,  when  exercised,  194. 

reports  of  tour  of  duty,  280. 

restraint  on  vicious  exercise  of,  199, 

rules  proclaimed  in  district,  144. 

safe  conducts  under,  213. 

supplements  existing  civil  law,  124. 

terminated  by  proclamation,  148. 

Mayor, 

may  call  out  troops  in  his  city,  56. 

reading  riot  act,  145. 
Medical  Department, 

first  duties  of,  167. 

304 


index,  references  to  sections. 

Meetings, 

public,  prohibited,  153. 
Military, 

shall  be  subordinate  to  civil  power,  13. 
Military  Commander, 

advising  civil  officer,  71. 

district  proclamation,  144. 

orders  of,  as  to  safeguards,  162. 

prohibits  public  meetings,  153. 

receiving    conflicting    orders    from    civil    officers, 
118. 

regulation  of  saloons  by,  152. 

terminates  martial  rule  by  proclamation,  148. 

Military  Commissions, 

duties  of,  207. 

establishing,   136. 

jurisdiction  of,  136,  137. 

number  of  officers  composing,  136,  note. 

validity  of  decisions  of,  137. 
Military  Government, 

defined,  3. 

exercised  only  in  foreign  territory,  3. 
Military  Law, 

customs  of  the  service  are,  12. 

defined,  3. 

governs  camp  followers  in  time  of  war,  8. 

liability  of  sentry  under,  259. 

minor  sources  of,  10. 

primary  source  of,  9. 

relative  force  of  statutes  and  regulations,  10. 
Military  Officers, 

discretionary  powers,  aid  of  civil  authorities,  110. 

305 


index,  references  to  sections. 

Militia. 

active,  is  national  guard,  2. 

constitution  distinguishes  it  from  army,  1. 

defined,  1. 

is  not  army,  1. 

officer  impressing  civilian's  horse,  231. 

powers  in  aid  of  civil  authorities,  95. 

who  may  call  out,  52,  55. 
Ministerial  Duties, 

of  troops  in  aid  of  civil  authorities,  97. 
Ministers, 

aid  of,  etc.,  155. 
Minors, 

over  18,  must  serve  if  enlisted,  70. 

over  18,  not  controlled  by  father,  70. 
Misdemeanor, 

arrest  for,  by  civil  officer,  103. 

defined,  98. 

force  used  in  making  arrest  for,  104. 
Mob, 

conduct  toward,  77. 

danger  of  timid  policy  with,  168. 

defined,  33. 

effect  on,  of  assembling  troops,  46. 

examining  members  of,  77. 

firing  on.  in  aid  of  civil  authorities,  112. 

firing  on  unresisting  members  of,  112. 

formation  of,  prevented,  37. 

given  time  to  disperse,  159. 

marching  on,  158,  159. 

preventing  a  lynching  by,  160. 

prevention  of  damage  by,  38. 

306 


INDEX,    REFERENCES    TO    SECTIONS. 

protecting  public  property  from,  47. 

rebellious,  34. 

resisting  attacks  by.  111. 

separating  rioters  from  citizens,  123. 

threats  to,  112. 

troops  should  not  detrain  near,  82. 

use  of  bayonet  to  disperse,  187. 

JMONEY, 

public,  used  for  purchase  of  supplies  for  troops, 
233. 

Mounted  Officers, 

servants  for,  176. 
Movement  of  Troops, 

scouts,  80. 

Murder, 

killing  non-resisting  rioter  is,  when,  178. 

Napoleon, 

first  fame  of,  gained  in  riot  duty,  168. 

National  Guard, 

is  militia,  2. 

who  may  call  out,  52,  55. 
Necessaries, 

for  troops,  how  procured  from  civilians,  231. 
Newspaper, 

correspondents,  with  troops,  8. 
Notice, 

form  of,  for  riot  duty,  17. 

general,  for  riot  duty,  18. 

service  of,  for  riot  duty,  16. 
Notifying  Men, 

duties  of  company  commander,  16. 

for  riot  duty,  16. 

307 


index,  references  to  sections. 

Obstructing  Mails, 

may  occasion  insurrection,  when,  196,  note. 

Officer, 

given  charge  of  ammunition,  20. 

must  not  disclose  official  transactions,  240. 

use  of  sword  by,  187. 

Officers, 

avoid  liability  by  securing  proof,  241. 

conduct  of,  71  et  seq. 

conduct  in  preparation  for  duty,  49. 

discretionary  powers,  federal  service,  246. 

fairness  in  reports,  281. 

liability  of,  under  civil  law,  240  et  seq. 

military,  powers  in  aid  of  civil  authorities,  94. 

mounted,  servants  of,  176. 

must  not  betray  nervousness,  49. 

personal  conduct  of,  79. 

property  of,  lost,  239. 

protected  by  governor's  orders,  240. 

provost,  216. 

when  ministerial  duties  only  may  be  performed. 
97. 
Oppressive  Acts, 

liability  for,  243. 

Order  at  Night, 

maintaining,  157. 

Orders, 

acknowledging  receipt  of,  62. 

assembly  before  receipt  of,  44. 

as  to  baggage  and  stores,  22. 

as  to  barricades,  163. 

as  to  clearing  streets  at  night,  156. 

308 


INDEX,    REFERENCES    TO    SECTIONS. 

as  to  equipment,  21. 

book  for,  60, 

by  civil  authorities,  form  of,  60,  61. 

cautionary,  for  riot  duty,  48. 

conflicting,  for  service,  57,  58. 

disarming  civil  authorities,  134. 

establishing  military  commissions,  136. 

establishing  qualified  martial  law,  211. 

first,  of  commanding  officer,  63. 

for  assembly  before  call,  44  et  seq. 

forbidding  sale  of  fire  arms,  134. 

force  of,  as  military  law,  10. 

for  co-operation  of  federal  troops,  139,  note. 

for  emergency  subsistence,  171. 

for  machine  guns,  164. 

for  safeguard,  162. 

for  troops,  forms  of,  60,  61. 

in  aid  of  civil  authorities,  65. 

interpretation  of,  69. 

of  civil  authorities,  when  in  aid  of,  95. 

of  company  commander,  63. 

of  governor  control,  when,  55. 

of  governor  protect  officer,  240. 

of  president,  protection  afforded  by,  245. 

prescribing  duties  of  provost  marshals,  215,  note. 

procuring,  when  waiting  for  call,  51. 

protection  of.  68. 

reinstating  civil  officers,  135. 

separate,  to  soldiers  and  civilians,  66. 

should  be  in  writing,  59. 

to  advance  and  rear  guards,  158. 

to  mob  to  disperse,  159. 

309 


INDEX,    REFERENCES    TO    SECTIONS. 

to  oust  civil  authorities,  132,  133. 

validity  of,  242. 
Ousting  Civil  Authorities, 

governor's  powers,  127. 
Outposts, 

Cossack  posts  for,  189. 
Packing  Boxes, 

sizes  of,  88. 
Patrol  Wagons, 

used  by  reserve,  190. 
Pay, 

of  troops  in  state  service,  177. 
Peace  Officers, 

powers  of,  to  make  arrests,  99. 

reading  riot  act,  145. 

who  are,  99. 
Permits, 

to  certain  civilians  at  night,  156,  157. 
Personal  Property, 

of  prisoners  of  war,  204. 
Picket  Posts, 

for  guarding  large  areas,  190. 
Pillage, 

always  absolutely  prohibited,  204. 
Places  of  Amusement, 

regulation  of,  154. 
Police  Powers, 

when  exercised  in  aid  of  civil  authorities,  95. 
Postliminy, 

v'loctrine  of,  233. 
Powers, 

dual,  of  commander,  6. 

scope  of  commanders,  7. 

310 


index,  references  to  sections. 

Preparedness, 

cautionary  orders,  48. 

co-operation  with  machine  guns,  23. 

drill  of  horses,  23. 

drills,  23. 

importance  of,  for  riot  duty,  14. 

notices  to  men,  16.    . 

target  practice,  23. 

triplicate  lists  of  men  for  duty,  16, 

President  Grant, 

his  proclamation  deciding  who  was  governor,  141. 

President  Harrison, 

order  of,  for  federal  aid,  139,  note. 

President  Hayes, 

proclamation  by,  141. 

President  of  the  United  States, 

application  to  for  federal  aid,  41,  42. 

decides  between  rival  governors,  126. 

discretion  of,  in  exercising  martial  law,  201. 

form  of  proclamation  by,  141. 

has  absolute  control  over  federal  troops.  139. 

has  full  authority  in  selecting  militia.  266. 

his  orders  protect  officer,  245. 

martial  law  powers  of,  201. 

may  use  militia,  41. 

power  to  call  out  troops,  53. 

shall  issue  proclamation,  42. 

statutory  powers  in  insurrection,  42. 

Prisoners, 

care  of  their  private  property,  234. 
examining,  77. 
protecting,  115. 

311 


INDEX,    REFERENCES    TO    SECTIONS. 

where  civil  authorities  are  superseded,  121. 
Prisoners  of  War, 

personal  property  of,  204. 
Private  Houses, 

when  used  as  quarters,  232. 

Private  Property, 

aid  of  civil  authorities,  229. 

always  protected,  204. 

compensation  for  loss  of,  238. 

of  enlisted  men,  lost,  239. 

of  officers,  lost,  239. 

of  prisoners,  care  of,  234. 

paid  for,  if  destroyed  by  soldiers,  83. 

taking,  229  et  seq. 

taking,  under  co-operative  martial  law,  231. 

taking,  under  qualified  martial  law,  230. 

Private  Weapons, 

carried  by  enlisted  men,  50. 
Privileged  Communications, 

state  executive  transactions  are,  240. 

Prize  Fight, 

prevention  of,  36. 

Proclamation, 

advisability  of,  130. 

by  commander  of  military  district,   144. 

closing  saloons,  when  issued  by  civil  officers,  151. 

final,  148. 

forbidding  sale  of  fire  arms,  134. 

form  of  federal,  141. 

form  of  governor's,  142. 

form  of,  in  military  district,  144. 

keeping  order  at  night,  156. 

312 


INDEX,    REFERENCES    TO    SECTIONS. 

not  absolutely  necessary,  to  establish  martiaJ  law, 

122,  130,  131. 
prepared  for  use,  19. 
president  shall  issue,  42 
recitals  of  fact  in,  143. 
reinstating  civil  authorities,  135. 
sheriff's,  145. 
special,  146. 

statutory  requirements,  140. 
U.  S.  statute  provides  for,  19. 
warning  as  to  liability,  147. 

Property, 

never  unnecessarily  destroyed,  204. 

Provisions, 

impressing,  237. 

Provost  Courts, 

jurisdiction  of,  214. 

Provost  Marshals, 
duties  of,  215. 

Provost  Officers, 

duties  of,  216. 
Public  Meetings, 

prohibited,  153. 
Public  Property, 

care  of,  47. 

military  control  of,  233. 

preventing  destruction  of,  161. 
Punishments, 

cruel  and  unusual,  208. 

sentences  of  military  commissions,  208. 
Qualified  Martial  Law, 

conduct  of  officers  exercising,  78. 

313 


INDEX,    REFERENCES    TO    SECTIONS. 

defined,  194. 

established    without    regard  to   statutory   forms, 

122. 
estabUshing,  211. 
exercise  of,  210. 
habeas  corpus  under,  221. 
may  become  co-operative  martial  law,  119. 
tactical  use  of  troops  under,  184. 
taking  private  property  under,  230. 
Quartering  Troops, 
in  buildings,  173. 

Quartermasters, 

duties  of,  173,  174,  175. 
U.  S.  manual  for,  89. 

Quartermaster's  Report, 
tour  of  duty,  277. 

Quarters, 

for  mounted  officer's  servants,  176. 
Railways, 

control  of,  under  absolute  martial  law,  204. 
Rations, 

enroute,  87. 
Rear  Guard, 

for  street  work,  158. 
Rebellion, 

defined,  32. 

duty  of  president,  42. 

federal  aid   in,  42. 
Receipt  of  Orders, 

should  be  acknowledged,  62, 
Regulations, 

are  administrative  rules,  4. 

314 


INDEX,    REFERENCES    TO    SECTIONS. 

as  to  assembly  of  troops,  45. 

as  to  baggage,  88. 

as  to  safeguard,  162. 

as  to  saloons,  152. 

defined,  4. 

federal,  as  to  status  of  insurgents,  197. 

federal,  as  to  tactical  use  of  troops,  178. 

federal,  for  subsistence,  169. 

force  of,  as  military  law,  10. 

state,  as  to  tactical  use  of  troops  should  be  of  two 
kinds,  182. 

state,  for  subsistence,  171. 

state  tactical,  differ  from  federal,  180,  182. 
Report  of  Tour  of  Duty, 

fairness  in,  281. 

general  customs,  272,  et  seq. 

general  requirements,  273. 

medical  officer's  report,  275. 

stafif  reports,  274. 

under  martial  law,  280. 
Reports, 

of  tour  of  duty,  272,  et  seq. 

of  progress  of  riot,  GG. 

securing  witnesses  for,  161. 
Reserve, 

use  of  patrol  wagons,  by,  190. 
Resisting  Attack, 

of  mob.  111. 
Revolvers, 

private,  carried  by  enlisted  men,  50. 
Rifles, 

firing  pins  may  be  gummed,  20. 

kept  in  serviceable  condition,  20. 

315 


index,  references  to  sections. 

Right  of  Search, 

under  martial  law,  205. 

Riot, 

and  mob  are  synonymous,  33. 

appeal  to  governor,  57. 

defined,  33. 

effect  on,  of  assembling  troops,  46. 

liability  for  destruction  of  property  in,  75. 

may  be  prevented,  37. 

prevention  of  damage  by,  38. 

Riot  Act, 

reading,  145. 

Riot  Duty, 

arresting  civil  authorities,  132. 

assembly  before  receipt  of  orders  for,  44  et  seq. 

benefit  of  instruction  in,  24. 

cautionary  orders  for,  48. 

classes  of  calls  for,  35. 

construction  of  barricades,  163. 

control  of  state  statutes,  116. 

difference   in   tactics   between    federal   and   state 

service,  178. 
form  of  notice  to  assemble  for,  17. 
forms  of  orders  for,  60,  61. 
general  notices  for,  18. 

general  plans  depend  on  source  of  orders,  168. 
governor  is  supreme,  127. 
governor's  decisions  are  final,  127. 
importance  of  prompt  decision,  40. 
instruction  in,  24. 

justifiable  homicide  by  civilians,  113. 
marching  on  mob,  159. 

316 


INDEX,    REFERENCES    TO    SECTIONS. 

notifying  men  for,   16. 

orders  for,  should  be  in  writing,  59. 

paying  troops  for,  177. 

personal  conduct  of  officers,  79. 

preparation  for,  14. 

preparation  of  equipment  for,  21. 

preventing  a  lynching,  IGO. 

reporting  progress,  of  troops  and  of  riot,  6G. 

secret  assembly  for,  46. 

sending  troops  in  detachments,  86. 

serving  notices  for,  16. 

use  of  machine  guns,  164. 

use  of  scouts,  80. 

warning  men  for,  46. 

who  may  call  troops  for,  52. 
Rioters, 

defined,  132. 

firing  on,  by  advance  and  rear  guards,  158. 

separating,  from  citizens,  123. 
Rival  Governors, 

Dorr  rebellion,  126. 
Saloons, 

closing,  statutory  requirements,   149. 

custom  as  to  closing,  150. 

duty  of  military  commander  as  to,  152. 
Safe  Conducts, 

under  martial  law,  213. 
Safeguard, 

Cossack  posts  for,  189, 

defined,  162. 

duty  of  sentry,  162. 

form  of,  162. 

for  threatened  buildings,  162. 

317 


index,  references  to  sections. 

Schools, 

for  instruction  in  riot  duty,  24. 
Scouts, 

preceding  troops,  80. 
Search  of  Houses, 

under  martial  law,  205. 
Self  Defense, 

homicide  justifiable  in,  9G. 
Sentries, 

double,  in  guarding  parts  of  city,  190. 

firing  on  person  crossing  dead  line,  162,  note. 

liability  in  aid  of  civil  authorities,   260. 

liability  under  martial  law,  261. 

liability  under  military  law,  259. 

orders  of,  when  safeguard  forced,  162. 
Separate  Units, 

transportation  of,  86. 
Service, 

of  notice  for  riot  duty,  16. 
Sheriff, 

may  call  out  troops  in  his  county,  56. 

order   by,   for  troops,   61. 

powers  of,  105,  note. 

proclamation  by,  145. 
Situation, 

legal,  must  be  understood  by  officers,  246. 
Spies, 

need  not  act  as  such,  by  order,  117,  note. 

not  protected  by  orders,  117,  note. 

procured  only  by  contract,  117,  note. 
Staff  Officers, 

duties  of,  75. 

should  procure  service  manuals,  89. 

318 


index,  references  to  sections. 

Staff  Reports, 

tour  of  duty,  274. 

State  Powers, 

in  exercise  of  martial  law,  200. 

State  Property, 

in  U.  S.  service,  270. 

State  Riot  Statutes, 

liability  of  officers  under,  243. 

States, 

adoption  of  Articles  of  War  by,  9. 

Status  of  Insurgents, 

federal  rule  as  to,  197. 
Statutes, 

all  regulations  are  not,  4. 

as  to  sheriff's  proclamation,  145. 

cannot    strip    governor  of  constitutional  powers, 
127. 

federal,  control  tactical  regulations,  179. 

federal,  relating  to  subsistence,  169. 

formal,  need  not  be  followed  by  governor,  122. 

governing  calls  must  be  constitutional,  26. 

governing  federal  service  of  militia,  265. 

governor  may  require  civil  authorities  to  enforce, 
36. 

preventing  violation  of,   212. 

provide  for  call  of  troops,  25,  52. 

regulate  tactical  use  of  state  troops,  180. 

relating  to  closing  saloons,  149. 

relative  to  federal  aid,  42. 

requiring  proclamations,  140. 

riot,  state,  liability  of  officer  under,  243. 

state,  control  riot  duty,  116. 

319 


INDEX,    REFERENCES    TO    SECTIONS. 

State,  relating  to  subsistence,  170. 

unnecessary  violation  of,  250. 

used  to  determine  legal  questions,  72. 
Steamer  Caroline, 

destruction  of,  117. 
Street  Column, 

formation,  use  of,  23. 

use  of,  158. 
Streets, 

marches  through,  158. 
Subordinate, 

trespass  by,  liability  of  officer,  253. 
Subsistence, 

emergency,  in  federal  service,  170. 

emergency,  without  orders,  172. 

federal  service,  169. 

of  men  before  call  for  duty,  51. 

of  mounted  officer's  servants,  176. 

procuring  from  civilians,  231. 

state  service,  171. 

state  service,  emergency,  171. 
Summary  Court  Officer's  Report, 

tour  of  duty,  278. 
Surgeon's  Report, 

tour  of  duty,  275. 
Suspension  of  Writ, 

defined,  habeas  corpus,  219. 
Sutlers, 

control  of,  8. 
Sword, 

use  of,  187. 
System, 

for  calling  men  for  riot  duty,  15. 

320 


INDEX,    REFERENCES    TO    SECTIONS. 

of  preparation  for  riot  duty,  15. 
Tactical  Use  of  Troops, 

bayonet,  187. 

blank  cartridges  not  used,  188. 

differs  in  federal  and  state  service,  178. 

guarding  large  areas,  190. 

in  aid  of  civil  authorities,  182,  183. 

in  federal  service,  178. 

picket  posts  and  double  sentries,  190. 

reserves  and  patrol  wagons,  190. 

safeguards  and  outposts,  189. 

two  kinds  in  state  service,  182. 

under  absolute  martial  law,  186. 

under  co-operative  martial  law,  185. 

under  qualified  martial  law,  184. 

when  controlled  by  state  statutes,  116. 
Tactics, 

definition  of,  181. 
Tarble's  Case, 

habeas  corpus,  228. 
Telegrams, 

used  to  make  record,  56. 
Telegraphs, 

control  of,  under  absolute  martial  law,  204. 
Telephones, 

control  of,  under  absolute  martial  law,  204. 

orders  by,  should  be  reduced  to  writing,  59,  60. 
Tents, 

use  of,  174. 
Territorial  Governor, 

martial  law  powers  of,  202. 
Territorial  Limits, 

wherein  state  troops  are  used  in  state  service,  117. 

321 


index,  references  to  sections. 

Theaters, 

regulation  of,  154. 
Trains, 

directed  by  commanding  officer,  82. 
Transportation, 

piecemeal,  86. 

securing,  85. 
Travel  Rations, 

importance  of,  87. 
Troops, 

care  of,  75. 

when  called,  25  et  seq. 
Twice  in  Jeopardy, 

liability  to  be,  263. 
Unconstitutional  Laws, 

call  of  troops  to  enforce,  26, 
United  States  Constitution, 

distinguishes  army  from  militia,  1. 

is  primary  source  of  military  law,  9. 

United  States  Regulations, 

applied  to  state  troops  in  state  service,  10. 

supercede  state,  when,  11. 
United  States  Service, 

company  minimum  of  militia  accepted  for,  268. 

emergency  subsistence,  170. 

horses  for  mihtia  officers,  271. 

in  insurrection,  statutes  relative  to,  42. 

militia  in,  laws  and  regulations,  264. 

militia  officers,  269. 

pay  and  pensions  of  militia  in,  267. 

returns  for  state  property  by  militia,  270. 

selecting  militia,  for,  266. 

322 


INDEX,    REFERENCES    TO    SECTIONS. 

staff  manuals  for,  89. 

subsisting  militia,  169. 

use  of  federal  militia,  41. 
Unusual  Punishment, 

example  of,  208. 
Venue, 

change  of,  secured  in  federal  service,  178,  228. 
Violation  of  Statute, 

preventing,  212. 
War  Material, 

control  of,  under  absolute  martial  law,  204. 
Weapons, 

private,  loaded  in  quarters,  50. 
Who  May  Call  Out  Troops, 

constitutions  and  statutes  govern,  52. 
Witnesses, 

getting  names  of,  161. 
Written  Orders, 

'  should  be  required,  59,  60. 
When  Troops  Should  be  Called, 

civil  authorities  may  decide,  30. 

governor  decides,  28. 

occasions  classified,  35. 

state  constitutions  govern,  25. 


323 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


^PR  8    1963 


Form  L9-Serie8  444 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

^  Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


JAN  2  2  1969 


Form  L'J— Series  444 


^^    000  594  136    4 


